in the Supreme Court on 28 August 2019.
pursuant to N.C. G.S. § 7A-30(2) from the unpublished
decision of a divided panel of the Court of Appeals, No.
COA18-12, 2018 WL 4701732 ( N.C. Ct. App. Oct. 2, 2018),
finding no error in judgments entered on 4 May 2017 by Judge
Christopher W. Bragg in Superior Court, Union County.
H. Stein, Attorney General, by Alexandra Gruber, Assistant
Attorney General, for the State.
Petersen for defendant-appellant.
case comes to us based on a dissenting opinion in the Court
of Appeals. The issue before the Court is whether the Court
of Appeals majority erred when it determined that the State
presented sufficient evidence of the N.C. G.S. §
15A-1340.16(d)(15) aggravating factor-that defendant
"took advantage of a position of trust or confidence,
including a domestic relationship, to commit the
offense[s]"-to submit that aggravating factor to the
jury. Because we conclude there was not sufficient evidence
to submit the aggravating factor to the jury, we reverse the
decision of the Court of Appeals and remand this matter for a
new sentencing hearing without the consideration of the
section 15A-1340.16(d)(15) aggravating factor.
and Procedural Background
July 2015, Defendant was indicted for two counts of engaging
in a sex offense with a child under the age of thirteen
years, in violation of section 14-27.4(a)(1) of the General
Statutes. Those indictments were later joined for trial with
two additional indictments for taking indecent liberties with
victim, L.F.,  was born on 23 April 2011. Her mother,
B.F., went on her first date with defendant in 2012. Over the
course of B.F.'s relationship with defendant, L.F. had
very little contact with defendant and was in his presence
only twice: once on B.F.'s first date with defendant, and
once on the occasion of the offense.
brought L.F., who was an infant at the time, along on her
first date with defendant. At the end of the date, B.F.
performed oral sex on defendant in the car while L.F. was
asleep in a rear-facing car seat in the backseat.
only other time L.F. and defendant were together was on the
occasion of the offense. One night in the fall of 2014, B.F.
brought three-year-old L.F. to defendant's parents'
house. Defendant's parents had a treehouse with a bed and
a television inside. B.F., L.F., and defendant sat on the bed
in the treehouse and watched a children's television
show. Defendant texted B.F. and told her to take off
L.F.'s clothes and her own, and she complied. Defendant
then removed all of his own clothes, except his boxers.
Defendant asked B.F. to touch L.F.'s clitoris, which she
did. Defendant watched and began masturbating. At
defendant's request, B.F. moved L.F. closer to him.
Defendant placed his hand on L.F.'s head to guide her
mouth onto his penis. When L.F. expressed that she wanted to
leave, defendant took her and B.F. home.
January 2015, L.F. told her stepmother about what happened in
the treehouse. Her stepmother contacted law enforcement and
trial, the jury found defendant guilty of all four charges
and found that the State had proven two aggravating factors:
(1) that defendant took advantage of a position of trust or
confidence, including a domestic relationship, to commit the
offense, and (2) that the victim was very young. The trial
court arrested judgment on the two convictions of taking
indecent liberties with a child.
sentencing hearing, the trial court found four mitigating
factors, but determined that the aggravating factors
outweighed the mitigating factors, and gave defendant an
aggravated sentence. The trial court sentenced defendant to
300 to 420 months ...