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State v. Corey

Supreme Court of North Carolina

December 6, 2019

STATE OF NORTH CAROLINA
v.
KURT ALLEN COREY

          Heard in the Supreme Court on 4 March 2019.

         On discretionary review pursuant to N.C. G.S. § 7A-31-31 of a unanimous, unpublished decision of the Court of Appeals, No. COA17-1031, 2018 WL 2642772 ( N.C. Ct.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.

          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- 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.

         Shannon[1] 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 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 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- 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 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 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). 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 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), 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 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 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, 4201966) (stating that "[t]he court cannot properly give judgment unless it appears in the record that an offense is sufficiently 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 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 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]

         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 ...


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