State v. Corey

• Decision Date: 06 December 2019
• Docket Number: No. 189PA18,189PA18
• Parties: STATE of North Carolina v. Kurt Allen COREY
• Court: North Carolina Supreme Court

373 N.C. 225

835 S.E.2d 830

STATE of North Carolina

v.Kurt Allen COREY

No. 189PA18

Supreme Court of North Carolina.

Filed December 6, 2019

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

Franklin E. Wells, Jr., Asheboro, 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.

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 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...