State v. Fletcher , 370 N.C. 313 ( 2017 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 94PA16
Filed 8 December 2017
STATE OF NORTH CAROLINA
v.
HAROLD LAMONT FLETCHER
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, 782 S.E.2d 926
(2016), finding no error at trial after appeal from judgments entered on 23 May 2014
by Judge Phyllis M. Gorham in Superior Court, New Hanover County. Heard in the
Supreme Court on 13 February 2017.
Joshua H. Stein, Attorney General, by Laura E. Crumpler, Special Deputy
Attorney General, for the State.
Glenn Gerding, Appellate Defender, by James R. Grant, Assistant Appellate
Defender, for defendant-appellant.
ERVIN, Justice.
The issues before us in this case include whether the trial court abused its
discretion by overruling defendant’s objection to alleged misstatements of law
contained in the prosecutor’s final argument to the jury and whether the trial court
erroneously denied defendant’s request that the jury be instructed that the “oral
intercourse” element of first-degree sexual exploitation of a minor involves
“penetration, however slight.” We hold that the challenged prosecutorial argument,
STATE V. FLETCHER
Opinion of the Court
while erroneous, was not prejudicial and that the trial court did not err by refusing
to deliver defendant’s requested “oral intercourse” instruction. As a result, we modify
and affirm the Court of Appeals’ decision.
On 26 May 2002, defendant Harold Lamont Fletcher married “Theresa,” who
had two young children from a previous marriage, including “Diane.”1 Diane referred
to defendant, who had become involved in Diane’s life when she was one year old, as
“Dad.” Theresa had known since the beginning of the couple’s marriage that
defendant had a pornography-related addiction and eventually insisted that
defendant receive counseling for this problem. As a result, both defendant and
Theresa underwent counseling that was intended to address defendant’s
pornography-related addiction.
During her third or fourth grade year, Diane noticed that defendant had begun
to enter her bedroom after she had gone to bed. On one occasion, Diane found
defendant standing over her with his hand on her chest. On another occasion,
defendant told Diane that “he was picking a piece of cotton or lint out of [her] mouth
from [her] blanket” when she confronted him about being in her room at night. In
early March 2012, when she was fifteen years old, Diane saw a red light outside of
her bedroom window. A few weeks later, on 12 March 2012, Diane saw a camera
“Theresa” and “Diane” are pseudonyms used for ease of reading and to protect the
1
identity of the persons involved.
-2-
STATE V. FLETCHER
Opinion of the Court
outside the same window as she dressed. Defendant was outside the family home on
both occasions.
In early December 2012, after Diane told Theresa that she believed that
defendant was entering her bedroom and “touching her chest,” Theresa took Diane to
speak with the counselor who had assisted defendant and Theresa with defendant’s
addiction to pornography, given that the “counselor was aware of [defendant’s]
habits.” After consulting with the counselor, Theresa contacted the New Hanover
County Department of Social Services.
Subsequently, the State Bureau of Investigation initiated an investigation into
defendant’s activities. During a search of the family home, investigating officers
seized multiple videos and photographs of Diane from files stored on defendant’s
computer, including several images depicting Diane in various states of undress and
four images depicting a hand holding a penis against or near Diane’s mouth while
she slept. According to Theresa, the hand and the penis depicted in the second set of
images belonged to defendant.
Although defendant admitted that he had recorded images of Diane “in the
bathroom getting ready to take a shower, dressing, undressing,” and “asleep in her
bed” for purposes of “sexual gratification,” he denied having ever touched her in an
inappropriate manner. At trial, defendant admitted to having committed secret
peeping and having taken indecent liberties with a child. However, defendant denied
his guilt of statutory sex offense and first-degree sexual exploitation of a minor on the
-3-
STATE V. FLETCHER
Opinion of the Court
grounds that the images depicting his penis near Diane’s mouth did not show actual
conduct and had, instead, been digitally manipulated to produce that appearance.
Although Lars Daniel, an expert in digital imaging manipulation, testified that
defendant “display[ed] an advanced level of ability [with] Photoshop” and that it was
“highly likely” that at least one of the images depicting a penis near Diane’s mouth
had been digitally manipulated, he could not formulate an opinion concerning the
extent, if any, to which any of the other images depicting defendant’s penis against
or near Diane mouth had been digitally altered.
On 18 March 2013, the New Hanover County grand jury returned bills of
indictment charging defendant with one count of first-degree sexual exploitation of a
minor; statutory sex offense with a fifteen year-old; eighteen counts of secret peeping;
and six counts of taking indecent liberties with a child, with these offenses allegedly
having occurred between 24 December 2009 and 3 December 2012. The charges
against defendant came on for trial before the trial court and a jury at the 19 May
2014 criminal session of the Superior Court, New Hanover County.
During the jury instruction conference, the trial court rejected defendant’s
request that the trial court instruct the jury that the “oral intercourse” necessary for
a finding of guilt of first-degree sexual exploitation of a minor “requires something
more than a mere touching” and could require proof of “penetration, however slight.”
After the State asserted that proof of penetration was not required to establish “oral
intercourse” and that “oral intercourse” and “fellatio” were interchangeable terms,
-4-
STATE V. FLETCHER
Opinion of the Court
the trial court refused to instruct the jury in accordance with defendant’s request and
permitted the parties to advance their competing definitions of “oral intercourse”
before the jury during their closing arguments.
Once defendant had asserted in his closing argument that the images depicting
his penis on or near Diane’s mouth had been digitally altered and that these images,
even in their unaltered state, did not depict his penis in physical contact with Diane’s
mouth, the trial court allowed the prosecutor to argue, over defendant’s objection,
that:
The other charge is sexual exploitation of a minor.
That’s a very fancy way for saying manufacturing or
producing child pornography. You have to know the
content of the material, using a minor for the purposes of
producing material that contains a visual representation
depicting sexual activity. Does not matter if the image was
altered. If I take a picture of a child from the newspaper
at a tennis match and I go back to my house and I take a
picture of myself unclothed and I am able to manipulate
those photos to show that I am engaged in a sexual act with
that child, that’s manufacturing child pornography. The
child does never have to actually be involved in the sexual
act itself.
Although the trial court did instruct the jury that, in order to find defendant guilty
of first-degree sexual exploitation of a minor, it had to find beyond a reasonable doubt
that “defendant used, induced, coerced, encouraged or facilitated a [minor] to engage
in [oral intercourse] for the purpose of producing material that contains a visual
representation depicting this activity,” the trial court never defined “oral intercourse”
during its final instructions to the jury.
-5-
STATE V. FLETCHER
Opinion of the Court
On 22 May 2014, the jury returned verdicts finding defendant guilty of first-
degree sexual exploitation of a minor, attempted statutory sex offense, eighteen
counts of secret peeping, and six counts of taking indecent liberties with a child. On
23 May 2014, the trial court arrested judgment with respect to each of the secret
peeping charges; entered judgments sentencing defendant to consecutive terms of 16
to 20 months imprisonment based upon each of defendant’s convictions for taking
indecent liberties with a child, to a consecutive term of 73 to 97 months based upon
defendant’s conviction for first-degree sexual exploitation of a minor, and to a
consecutive term of 157 to 198 months imprisonment based upon defendant’s
conviction for attempted statutory sex offense; and ordered that defendant register
as a sex offender following his release from imprisonment. Defendant noted an
appeal to the Court of Appeals from the trial court’s judgments.
In seeking relief from the trial court’s judgments before the Court of Appeals,
defendant argued that the trial court had erred by allowing the prosecutor “to
misstate the law to the jury regarding an essential element of sexual exploitation” of
a minor and by failing to instruct the jury that guilt of first-degree sexual exploitation
of a minor required proof of “penetration, however slight.” In rejecting defendant’s
challenge to the prosecutor’s closing argument, the Court of Appeals determined that
“the prosecutor’s remarks [constituted] reasonable inferences of the law” given that
first-degree sexual exploitation “include[s] digitally manipulated photos that had
been produced without a minor being actually engaged in sexual activity, provided
-6-
STATE V. FLETCHER
Opinion of the Court
that the image depicted an actual minor engaged in sexual activity.” State v. Fletcher,
-- N.C. --, 782 S.E.2d 926, 2016 WL 797895 (2016) (unpublished), at *5. The Court of
Appeals further noted that, “to the extent that the prosecutor’s argument could be
construed as a misstatement of law, it was remedied by the trial court’s multiple
reiterations that it will instruct on the law and its instructing was in accordance with
the pattern jury instructions.” Id. at *6.
Secondly, the Court of Appeals rejected defendant’s contention that “ ‘oral
intercourse’ requires some evidence that that defendant’s male sex organ penetrated
Diane’s mouth.” Id. at *9. After acknowledging long-standing precedent to the effect
that both vaginal intercourse and anal intercourse require penetration, the Court of
Appeals stated that, “[g]iven the ambiguity of the phrase and these indicators of
meaning,” it would decline “to impose the requirement that, when the State proceeds
under ‘oral intercourse,’ it must prove that the victim’s mouth was penetrated.” Id.
at *10. As a result, the Court of Appeals found no error in the proceedings leading to
the entry of the trial court’s judgments.
In seeking further review of the Court of Appeals’ decision by this Court,
defendant argued that “the prosecutor misstated the law during his closing argument
when he told the jury that it could convict [defendant] of first degree exploitation even
if it determined that the images were fabricated or manipulated” and that the trial
court’s decision to overrule his objection to the prosecutor’s argument “endorsed the
prosecutor’s misstatement in the presence of the jury.” In addition, defendant argued
-7-
STATE V. FLETCHER
Opinion of the Court
that the Court of Appeals’ decision to the effect that “ ‘oral intercourse’ as
contemplated by N.C.G.S. § 14-190.16 does not require penetration” “conflict[s] with
this Court’s well-established precedent regarding the definition of sexual
‘intercourse.’ ” The State, on the other hand, urged us to refrain from granting further
review in this case on the grounds that the Court of Appeals had correctly determined
that the challenged prosecutorial argument rested upon “ ‘reasonable inferences’
derived from the sexual exploitation statute”; that, “even assuming some impropriety,
the trial court’s instruction to the jury cured any such improper argument”; and that
the Court of Appeals had “relied upon several well established principles of statutory
construction” in determining that “oral intercourse” as that term is used in N.C.G.S.
§ 14-190.13(5)(b) did not involve penetration. We granted defendant’s petition for
discretionary review of the Court of Appeals’ decision on 9 June 2016.
In seeking to persuade us that the trial court erred by overruling his objection
to the prosecutor’s argument that the images utilized to support the first-degree
sexual exploitation of a minor charge did not need to depict actual sexual activity,
defendant contends that the relevant statutory provision requires “that a minor
actually be exposed to sexual activity” on the grounds that the presence or absence of
such activity “is one distinction separating first-degree sexual exploitation from the
two lesser degrees of sexual exploitation,” citing N.C.G.S. §§ 14-190.17 and 14-
190.17A. The trial court’s failure to sustain defendant’s objection to the challenged
prosecutorial argument clearly prejudiced defendant given that his “primary defense”
-8-
STATE V. FLETCHER
Opinion of the Court
“was that the images of Diane sleeping” had been “digitally manipulated through the
use of computer software” and, “at worst, simulated sexual activity.” In defendant’s
view, the trial court’s jury instructions did not suffice to cure the prejudice arising
from the prosecutor’s argument given that “the pattern instruction employed by the
trial court merely tracked the language of the statute, and . . . did not explicitly
address the prosecutor’s misstatement.” Finally, defendant asserted that “the jury’s
logically inconsistent verdicts of attempted statutory sex offense and completed first-
degree sexual exploitation” highlighted the prejudicial effect of the trial court’s error.
Secondly, defendant contends that the trial court’s failure to instruct the jury
that “oral intercourse” required proof of “penetration, however slight,” constituted
prejudicial error. After noting that a “trial court is required to give [a requested]
instruction, at least in substance, if it is a correct statement of the law and supported
by the evidence,” citing State v. Shaw, 322 N.C. 797, 804, 370 S.E.2d 546, 550 (1988),
defendant contends that, because “this Court has consistently held that the phrases
‘vaginal intercourse’ and ‘anal intercourse’ both entail penetration, however slight,”
the statutory reference to “oral intercourse” should be understood to require
“penetration” as well given that “it is conclusively presumed that the intention of the
Legislature must be taken to be in the import of the words previously judicially
construed,” quoting Jones v. Commissioners, 137 N.C. 579, 608, 50 S.E. 291, 301
(1905).
-9-
STATE V. FLETCHER
Opinion of the Court
The State, on the other hand, contends that the Court of Appeals correctly
determined that the challenged portion of the prosecutor’s argument, rather than
misstating the law, reflected a “reasonable inference” “derived from the exploitation
statute.” Moreover, even if the trial court erred by failing to sustain defendant’s
challenge to the relevant portion of the prosecutor’s argument, “[d]efendant cannot
demonstrate prejudicial error” given the overwhelming evidence of defendant’s guilt
and the fact that the trial court correctly instructed the jury concerning the issue of
defendant’s guilt of first-degree sexual exploitation of a minor, with any inconsistency
between the jury’s verdicts concerning the issue of defendant’s guilt of statutory sex
offense and first-degree sexual exploitation of a minor failing to establish prejudice
“stemming from the prosecutor’s brief statement concerning manipulated images,”
citing State v. Davis, 214 N.C. 787, 794, 1 S.E.2d 104, 108 (1939) (holding that, if the
record contains sufficient evidence to support a verdict, “mere inconsistency will not
invalidate the verdict”).
In addition, the State asserts that the trial court’s jury instructions
“adequately addressed each essential element” of the offense of first-degree sexual
exploitation of a minor, so that “the trial judge was not required to read [d]efendant’s
requested jury instruction.” According to the State, defendant’s requested instruction
concerning the definition of “oral intercourse” “would narrow the scope of the statute
and . . . [allow] an adult [to] escape prosecution even if he actively filmed or produced
a picture of his penis touching the lips, tongue or mouth of a minor” despite the
-10-
STATE V. FLETCHER
Opinion of the Court
General Assembly’s clear intention to protect minors “from the physiological and
psychological injuries resulting from sexual exploitation and abuse,” quoting State v.
Williams, 232 N.C. App. 152, 159, 754 S.E.2d 418, 423-24, appeal dismissed and disc.
rev. denied, 367 N.C. 784, 766 S.E.2d 846 (2014). As a result, the State urges us to
affirm the Court of Appeals’ decision.
As a general proposition, parties are given “wide latitude” in their closing
arguments to the jury, State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131 (1975)
(citations omitted), with the State being entitled to “argue to the jury the law, the
facts in evidence and all reasonable inferences drawn therefrom,” State v. Goss, 361
N.C. 610, 626, 651 S.E.2d 867, 877 (2007) (quoting State v. Alston, 341 N.C. 198, 239,
461 S.E.2d 687, 709-10 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed.
2d 100 (1996)), cert. denied, 555 U.S. 835, 129 S. Ct. 59, 172 L. Ed. 2d 58 (2008).
However, “[i]ncorrect statements of law in closing arguments are improper, and upon
[a] defendant’s objection, the trial judge should . . . sustain [the] objection and
instruct the jury to disregard the statement.” State v. Ratliff, 341 N.C. 610, 616-17,
461 S.E.2d 325, 328-29 (1995) (citation omitted).2 A challenge to the trial court’s
2 Although the State contends that defendant’s general objection did not suffice to
preserve his challenge to the trial court’s failure to sustain his objection to the challenged
portion of the prosecutor’s argument for purposes of appellate review, no statement of the
basis for an objection is required unless the ground for the objection is “not apparent from
the context.” N.C. R. App. P. 10(a)(1). When the relevant portions of the State’s final
argument are considered in the context of the basic thrust of defendant’s defense, the basis
for defendant’s objection is obvious. As a result, we conclude that defendant’s challenge to
the trial court’s refusal to sustain defendant’s objection to a portion of the prosecutor’s final
argument is properly preserved for purposes of appellate review.
-11-
STATE V. FLETCHER
Opinion of the Court
failure to sustain a defendant’s objection to a comment made during the State’s
closing argument is reviewed for an abuse of discretion, State v. Walters, 357 N.C. 68,
101, 588 S.E.2d 344, 364 (citing State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106
(2002)), cert. denied, 540 U.S. 971, 124 S. Ct. 442, 157 L. Ed. 2d 320 (2003), with the
reviewing court being required to “first determine if the remarks were improper” and
then “determine if the remarks were of such a magnitude that their inclusion
prejudiced [the] defendant.” Id. at 101, 588 S.E.2d at 364 (citing and quoting Jones,
355 N.C. at 131, 558 S.E.2d at 106). Assuming that the trial court’s refusal to sustain
the defendant’s objection was erroneous, the defendant must show that there is a
reasonable possibility that the jury would have acquitted him had the challenged
argument not been permitted. Ratliff, 341 N.C. at 617, 461 S.E.2d at 329 (citing,
inter alia, N.C.G.S. § 15A-1443(a) (1988), which is identical to the current statute).
The statutory framework governing criminal liability arising from the creation
and distribution of child pornography was initially enacted by the General Assembly
in 1985. Cinema I Video, Inc. v. Thornburg, 320 N.C. 485, 489, 358 S.E.2d 383, 384
(1987). Under the current statutory scheme, a defendant can be convicted of sexual
exploitation of a minor in the event that he commits a variety of acts, with the
defendant’s conduct being subject to varying degrees of punishment depending upon
the nature and extent of the defendant’s involvement with the minor in question. See
N.C.G.S. §§ 14-190.16, -190.17 (2015); see also id. § 14-190.17A (2015) (enacted in
1989). For example, the offense of third-degree sexual exploitation of a minor
-12-
STATE V. FLETCHER
Opinion of the Court
prohibits the mere possession of child pornography. See id. § 14-190.17A(a) (stating
that “[a] person commits the offense of third degree sexual exploitation of a minor if,
knowing the character or content of the material, he possesses material that contains
a visual representation of a minor engaging in sexual activity”). On the other hand,
a defendant commits the offense of second-degree sexual exploitation of a minor if he
or she “[r]ecords, photographs, films, develops, or duplicates material that contains a
visual representation of a minor engaged in sexual activity; or . . . [d]istributes,
transports, exhibits, receives, sells, purchases, exchanges, or solicits material that
contains a visual representation of a minor engaged in sexual activity,” id. § 14-
190.17(a)(1)-(2), with the common thread running through the conduct statutorily
defined as second-degree sexual offense being that the defendant had taken an active
role in the production or distribution of child pornography without directly
facilitating the involvement of the child victim in the activities depicted in the
material in question. Finally, the offense of first-degree sexual exploitation of a minor
is committed if the defendant, “knowing the character or content of the material or
performance”:
(1) Uses, employs, induces, coerces, encourages, or
facilitates a minor to engage in or assist others to engage
in sexual activity for a live performance or for the purpose
of producing material that contains a visual representation
depicting this activity; or
(2) Permits a minor under his custody or control to
engage in sexual activity for a live performance or for the
-13-
STATE V. FLETCHER
Opinion of the Court
purpose of producing material that contains a visual
representation depicting this activity; or
(3) Transports or finances the transportation of a minor
through or across this State with the intent that the minor
engage in sexual activity for a live performance or for the
purpose of producing material that contains a visual
representation depicting this activity; or
(4) Records, photographs, films, develops, or duplicates
for sale or pecuniary gain material that contains a visual
representation depicting a minor engaged in sexual
activity.
Id. § 14-190.16(a).3 As a result, the acts necessary to establish the defendant’s guilt
of first-degree sexual exploitation of a minor can be categorized as involving either
direct facilitation of the minor’s involvement in sexual activity or the production of
child pornography for sale or profit. See id.
The indictment returned against defendant for the purpose of charging him
with first-degree sexual exploitation of a minor alleged that defendant “use[d] or
induce[d] or coerce[d] or encourage[d] or facilitate[d] [Diane] to engage in sexual
activity, oral intercourse, for the purpose of producing material containing a visual
representation depicting this activity” while “knowing the character of the material.”
As a result, the record clearly establishes that the State sought to prosecute
defendant for committing the offense delineated in N.C.G.S. § 14-190.16(a)(1).
3 The definition of “sexual activity” as set out in N.C.G.S. § 14-190.13(5) (2015) is
discussed in more detail below. The “act” of being photographed while sleeping does not,
however, fall within any component of the statutory definition of “sexual activity” contained
in that statutory provision.
-14-
STATE V. FLETCHER
Opinion of the Court
According to the plain language of the relevant statutory provision, the minor in
question is required to have engaged in sexual activity. See Williams v. Williams,
299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980) (stating that, “[w]here the language of
a statute is clear and unambiguous, there is no room for judicial construction and the
courts must give it plain and definite meaning”) (citations omitted); see also Cinema
I Video, Inc., v. Thornburg, 83 N.C. App. 544, 566, 351 S.E.2d 305, 319 (1986)
(concluding that the statutory provisions prohibiting the sexual exploitation of a
minor contemplate “live performance or photographic or other visual reproduction of
live performances”) (quoting New York. v. Ferber, 458 U.S. 747, 765, 102 S. Ct. 3348,
3358, 73 L. Ed. 2d 1113, 1127 (1982)), aff’d, 320 N.C. 485, 358 S.E.2d 383 (1987).
Thus, when the minor depicted in an image appears to have been shown as engaged
in sexual activity as the result of digital manipulation, the defendant has not
committed the offense of first-degree sexual exploitation of a minor. As a result, both
the prosecutor’s assertion that it “[d]oes not matter if the image [appearing to depict
sexual activity involving a minor] was altered” and the prosecutor’s statement that,
“[i]f I take a picture of a child from the newspaper . . . and I take a picture of myself
unclothed, and I am able to manipulate those photos to show that I am engaged in a
sexual act with that child, that’s manufacturing child pornography” constitute
misstatements of the applicable law.
The State’s reliance upon the decision of the United States Supreme Court in
United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008), to
-15-
STATE V. FLETCHER
Opinion of the Court
support its defense of the prosecutor’s argument is misplaced. As an initial matter,
the issue before the Court in Williams was whether a federal statute that
“criminalizes, in certain specified circumstances, the pandering or solicitation of child
pornography” was impermissibly “overbroad under the First Amendment [to the
United States Constitution] or impermissibly vague under the Due Process Clause of
the Fifth Amendment.” Id. at 288, 128 S. Ct. at 1835, 170 L. Ed. 2d at 659. In other
words, Williams addressed the issue of whether a legislative body could
constitutionally criminalize certain conduct rather than whether the General
Assembly, in enacting N.C.G.S. § 14-190.16(a)(1), actually did criminalize certain
types of conduct.4 Secondly, the federal statutory provision at issue in Williams,
unlike N.C.G.S. § 14-190.16(a)(1), explicitly defined prohibited “sexually explicit
conduct” as including various acts that could be either “actual or simulated.” Id. at
290, 128 S. Ct. at 1837, 170 L. Ed. 2d at 661. As a result, even though “[t]he
emergence of new technology and the repeated retransmission of picture files over
the Internet could make it nearly impossible to prove that a particular image was
produced using real children,” id. at 290, 128 S. Ct. at 1837, 170 L. Ed. 2d at 661, the
United States Supreme Court’s decision in Williams has no bearing upon the proper
resolution of defendant’s first challenge to the trial court’s judgments.
4We do not, of course, wish the textual discussion to be understood as expressing any
opinion concerning the extent, if any, to which digitally altering otherwise innocent
photographs of minors so as to create images that appear to depict the minor engaged in
sexual activity or the possession of such digitally altered images constitute either second-
degree sexual exploitation of a minor or third-degree sexual exploitation of a minor.
-16-
STATE V. FLETCHER
Opinion of the Court
Although the trial court erred by failing to sustain defendant’s objection to the
challenged prosecutorial argument, the commission of such an error, standing alone,
does not suffice to justify a decision to award defendant a new trial, see State v.
Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208, cert. denied, 510 U.S. 1028, 114 S.
Ct. 644, 126 L. Ed. 2d 602 (1993), given that a party’s misstatement of the law during
the course of its final argument is deemed to have been “cured by the court’s correct
jury instructions on [the issue misstated],” State v. Phillips, 365 N.C. 103, 140, 711
S.E.2d 122, 148 (2011), cert. denied, 565 U.S. 1204, 132 S. Ct. 1541, 182 L. Ed. 2d 176
(2012); see also State v. Anderson, 322 N.C. 22, 38, 366 S.E.2d 459, 469, cert. denied,
488 U.S. 975, 109 S. Ct. 513, 102 L. Ed. 2d 548 (1988). As defendant concedes, the
trial court instructed the jury that it could only convict defendant of first-degree
sexual exploitation of a minor in the event that it found beyond a reasonable doubt
that “the defendant used, induced, coerced, encouraged or facilitated a person to
engage in sexual activity for the purpose of producing material that contains a visual
representation depicting this activity,” with “[o]ral intercourse [constituting] sexual
activity.” Although this instruction explicitly informed the jury that, in order for it
to return a guilty verdict, it had to find that defendant “used, induced, coerced,
encouraged or facilitated” Diane’s involvement in sexual activity, defendant contends
that a finding that the trial court’s failure to sustain his objection to the prosecutor’s
misstatement of the law constituted harmless error would be inappropriate given the
centrality of the issue addressed in the challenged portion of the prosecutor’s
-17-
STATE V. FLETCHER
Opinion of the Court
argument to defendant’s defense and the fact that the trial court’s decision to overrule
his objection to the relevant portion of the prosecutor’s argument placed the
imprimatur of the trial court’s approval on the challenged argument. However, given
the clarity of the language used in the trial court’s instruction and the absence of any
North Carolina authority tending to support defendant’s contention, we do not find
defendant’s contentions with respect to the prejudice issue persuasive.5
Moreover, the fact that the jury returned what defendant describes as
“inconsistent” verdicts has no tendency to show that it failed to understand and heed
the trial court’s instructions concerning the showing that the State was required to
make in order for the jury to convict defendant of first-degree sexual exploitation of
a minor, which clearly required proof beyond a reasonable doubt that defendant used
Diane to engage in actual sexual activity. Although the jury’s verdicts might have
some tendency to suggest that the jury had difficulty determining whether
defendant’s penis actually touched Diane’s lips, its verdicts do not in any way tend to
suggest that the jury accepted the prosecutor’s contention that a conviction for first-
5 Although defendant did cite the United States Supreme Court’s decision in Bruton
v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), in support of the
prejudice argument discussed in the text, his reliance on Bruton is unavailing given that this
case involves a prosecutorial misstatement of the law that was corrected in the trial court’s
jury instructions while Bruton involved the admission of a codefendant’s confession that also
implicated the defendant subject to an instruction that the jury should only consider the
information contained in the codefendant’s confession against the codefendant. Unlike the
evidence at issue in Bruton, the challenged prosecutorial argument cannot reasonably be
described as “of the most persuasive sort, ineradicable, as a practical matter, from the jury’s
mind[.]” Kansas v. Carr, 577 U.S. ___, ___, 136 S. Ct. 633, 645, 193 L. Ed. 2d 535, 548 (2016)
(citations omitted).
-18-
STATE V. FLETCHER
Opinion of the Court
degree sexual exploitation of a minor can rest upon digitally altered images rather
than evidence of some sort of actual sexual activity. As a result, we do not believe
that there is any reasonable possibility that, but for the trial court’s failure to sustain
defendant’s objection to the prosecutor’s misstatement of the applicable law, the jury
would have acquitted defendant of first-degree sexual exploitation of a minor. Ratliff,
341 N.C. at 617, 461 S.E.2d at 329; see also N.C.G.S. § 15A-1443(a) (2015)).
“The jury charge is one of the most critical parts of a criminal trial.” State v.
Walston, 367 N.C. 721, 730, 766 S.E.2d 312, 318 (2014). “The purpose of . . . a charge
to the jury is to give a clear instruction to assist the jury in an understanding of the
case and in reaching a correct verdict,” Shaw, 322 N.C. at 803, 370 S.E.2d at 549,
including how “the law . . . should be applied to the evidence,” State v. Sutton, 230
N.C. 244, 247, 52 S.E.2d 921, 923 (1949) (citations omitted). As a result, the trial
court has a duty “to instruct the jury on all substantial features of a case raised by
the evidence.” Shaw, 322 N.C. at 803, 370 S.E.2d at 549 (citing State v. Ferrell, 300
N.C. 157, 163, 265 S.E.2d 210, 214 (1980), disapproved of on other grounds by State
v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993)). In the event that a
“defendant’s request for [an] instruction [is] correct in law and supported by the
evidence in the case, the trial court [is] required to give the instruction, at least in
substance.” Shaw, 322 N.C. at 804, 370 S.E.2d at 550 (citing State v. Howard, 274
N.C. 186, 199, 162 S.E.2d 495, 504 (1968)). “[I]n giving jury instructions,” however,
“ ‘the court is not required to follow any particular form,’ as long as the instruction
-19-
STATE V. FLETCHER
Opinion of the Court
adequately explains ‘each essential element of the offense.’ ” Walston, 367 N.C. at
731, 766 S.E.2d at 319 (quoting State v. Avery, 315 N.C. 1, 31, 337 S.E.2d 786, 803
(1985)). Even if a trial court errs by failing to give a requested and legally correct
instruction, the defendant is not entitled to a new trial unless there is “a reasonable
possibility that, had the error in question not been committed, a different result
would have been reached at the trial.” N.C.G.S. § 15A-1443(a); see also Shaw, 322
N.C. at 804, 370 S.E.2d at 550.
As we have already noted, defendant was charged with “us[ing], employ[ing],
induc[ing], coerc[ing], encourag[ing], or facilitat[ing] a minor to engage in . . . sexual
activity . . . for the purpose of producing material that contains a visual
representation depicting this activity.” N.C.G.S. § 14-190.16(a)(1). “Sexual activity”
for purposes of N.C.G.S. § 14-190.16(a)(1) consists of:
a. Masturbation, whether done alone or with another
human or an animal.
b. Vaginal, anal, or oral intercourse, whether done with
another human or with an animal.
c. Touching, in an act of apparent sexual stimulation or
sexual abuse, of the clothed or unclothed genitals, pubic
area, or buttocks of another person or the clothed or
unclothed breasts of a human female.
d. An act or condition that depicts torture, physical
restraint by being fettered or bound, or flagellation of or
by a person clad in undergarments or in revealing or
bizarre costume.
-20-
STATE V. FLETCHER
Opinion of the Court
e. Excretory functions; provided, however, that this sub-
subdivision shall not apply to [N.C.]G.S. [§] 14-190.17A.
f. The insertion of any part of a person's body, other than
the male sexual organ, or of any object into another
person's anus or vagina, except when done as part of a
recognized medical procedure.
g. The lascivious exhibition of the genitals or pubic area of
any person.
Id. § 14-190.13(5) (2015). In rejecting defendant’s request that the trial court instruct
the jury that “oral intercourse” for purposes of N.C.G.S. § 14-190.13(5)(b) involves
penetration, the trial court stated that, since “the indictment indicates that the
sexual activity was oral intercourse,” he would “instruct the jury that the sexual
activity was oral intercourse” without further defining that term and would “allow
counsel to argue definitions of oral intercourse and fellatio.”6
The extent to which “oral intercourse,” as that term is used in N.C.G.S. § 14-
190.13(5)(b), requires penetration presents a question of first impression for this
Court. “When construing legislative provisions, this Court looks first to the plain
meaning of the words of the statute itself.” State v. Ward, 364 N.C. 157, 160, 694
6 As an aside, we urge the members of the trial bench to refrain from avoiding the
necessity for instructing the jury concerning all of the essential elements of first-degree
sexual exploitation of a minor or any other offense by allowing the parties to argue alternative
definitions of a relevant statutory expression in lieu of defining that expression during the
trial court’s final instructions. As we have already indicated, “[i]t is the duty of the trial court
to instruct the jury on all substantial features of a case,” including the definition of statutory
terms such as “oral intercourse,” to the extent that it is necessary to clarify the nature of the
decision that the jury is required to make. Shaw, 322 N.C. at 803, 370 S.E.2d at 549.
-21-
STATE V. FLETCHER
Opinion of the Court
S.E.2d 729, 731 (2010). “If the statutory language is clear and unambiguous, the
court eschews statutory construction in favor of giving the words their plain and
definite meaning.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005). Aside
from the fact that neither the General Assembly7 nor the courts8 have defined “oral
intercourse,” that term lacks an unambiguous “plain and definite meaning” as well.
Id. at 614, 614 S.E.2d at 277. Although courts often consult dictionaries for the
purpose of determining the plain meaning of statutory terms, see State v. Ludlum,
303 N.C. 666, 671, 281 S.E.2d 159, 162 (1981), that approach is of no avail in this case
given the absence of any definition of “oral intercourse” in reference volumes such as
Webster’s Third New International Dictionary (1971), The American Heritage
Dictionary of the English Language (4th ed. 2000), and the New Oxford American
Dictionary (3d ed. 2010), or in online dictionaries, see, e.g., Merriam-Webster,
7 The term “oral intercourse” does appear, without further definition, in N.C.G.S. §
14-190.1(c)(1), which defines “sexual conduct” in the context of punishing “[o]bscene
literature and exhibitions,” and N.C.G.S. § 15A-615, which permits testing defendants
charged with committing offenses that “involve[ ]nonconsensual vaginal, anal, or oral
intercourse” or “vaginal, anal, or oral intercourse” with a victim under the age of sixteen for
the presence of sexually transmitted diseases. N.C.G.S. §§ 14-190.1(c)(1), 15A-615(a) (2015).
8 Although the term “oral intercourse” does appear in some of this Court’s opinions,
these references consist of quotations from various statutory provisions or portions of the
pattern jury instructions or of references to factual information contained in the record. None
of these references shed any light upon the proper resolution of the question that we are
called upon to decide in this case. See, e.g., State v. Autry, 321 N.C. 392, 395, 364 S.E.2d 341,
344 (1988); State v. Locklear, 320 N.C. 754, 756, 360 S.E.2d 682, 683 (1987); State v. Tucker,
317 N.C. 532, 535, 346 S.E.2d 417, 419 (1986); State v. Ford, 314 N.C. 498, 503, 334 S.E.2d
765, 769 (1985); State v. Jean, 310 N.C. 157, 159, 311 S.E.2d 266, 267 (1984); State v. Riddle,
300 N.C. 744, 745, 268 S.E.2d 80, 81 (1980); State v. Self, 280 N.C. 665, 667, 187 S.E.2d 93,
94 (1972).
-22-
STATE V. FLETCHER
Opinion of the Court
https://www.merriam-webster.com (last visited May 25, 2017).9 As a result, given the
absence of any generally accepted understanding of the meaning of the statutory
reference to “oral intercourse,” “judicial construction must be used to ascertain the
legislative will.” Beck, 359 N.C. at 614, 614 S.E.2d at 277 (quoting Burgess v. Your
House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136-37 (1990)).
According to well-established North Carolina law, “[t]he intent of the
Legislature controls the interpretation of a statute.” State v. Joyner, 329 N.C. 211,
217, 404 S.E.2d 653, 657 (1991) (quoting State v. Perry, 305 N.C. 225, 235, 287 S.E.2d
810, 816 (1982), overruled by State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d 911,
916 (2010)). “In ascertaining such intent, a court may consider the purpose of the
statute and the evils it was designed to remedy, the effect of the proposed
interpretations of the statute, and the traditionally accepted rules of statutory
construction.” State v. Tew, 326 N.C. 732, 738-39, 392 S.E.2d 603, 607 (1990) (citation
omitted); see also State v. Barnett, 369 N.C. 298, 304, 794 S.E.2d 306, 311 (2016)
(stating that, “[i]n ascertaining the legislative intent, courts should consider the
language of the statute, the spirit of the statute, and what it seeks to accomplish”
9 The dictionaries that have been consulted in the drafting of this opinion do
consistently define “oral sex” as the oral stimulation of the sex organ of another without
making any reference to any sort of penetration requirement. See, e.g., New Oxford American
Dictionary 1233 (3d ed. 2010) (defining “oral sex” as “sexual activity in which the genitals of
one partner are stimulated by the mouth of the other; fellatio or cunnilingus”); The American
Heritage Dictionary of the English Language 1236 (4th ed. 2000) (defining “oral sex” as “oral
stimulation of one’s partner’s sex organs”); Merriam-Webster, https://www.merriam-
webster.com/dictionary/oral%20sex (last visited May 25, 2017) (defining “oral sex” as “oral
stimulation of the genitals: cunnilingus, fellatio”).
-23-
STATE V. FLETCHER
Opinion of the Court
(quoting State ex rel. Utils. Comm’n v. Pub. Staff, 309 N.C. 195, 210, 306 S.E.2d 435,
444 (1983))). Although the title given to a particular statutory provision is not
controlling, it does shed some light on the legislative intent underlying the enactment
of that provision. Brown v. Brown, 353 N.C. 220, 224, 539 S.E.2d 621, 623 (2000)
(first citing In re Forsyth County, 285 N.C. 64, 71, 203 S.E.2d 51, 55 (1974); and then
citing Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 812, 517 S.E.2d
874, 879 (1999)). Similarly, “[w]hile a criminal statute must be strictly construed
against the State, the courts must nevertheless construe it with regard to the evil
which it is intended to suppress.” Tew, 326 N.C. at 739, 392 S.E.2d at 607 (citation
omitted). “A construction of a statute which operates to defeat or impair its purpose
must be avoided if that can reasonably be done without violence to the legislative
language.” Id. at 739, 392 S.E.2d at 607 (citation omitted).
Statutory provisions criminalizing the making, dissemination, and possession
of child pornography have been enacted by “virtually all of the States and the United
States” out of concern “that the use of children as subjects of pornographic materials
is harmful to the physiological, emotional, and mental health of the child.” New York
v. Ferber, 458 U.S. at 758, 102 S. Ct. at 3355, 73 L .Ed. 2d at1123. Such laws
are designed to prevent the victimization of individual
children, and to protect “minors from the physiological and
psychological injuries resulting from sexual exploitation
and abuse.” This Court has noted that child pornography
poses a particular threat to the child victim because “the
child’s actions are reduced to a recording [and] the
-24-
STATE V. FLETCHER
Opinion of the Court
pornography may haunt him in future years, long after the
original misdeed took place.”
State v. Howell, 169 N.C. App. 58, 63, 609 S.E.2d 417, 420-21 (2005) (alteration in
original) (quoting Cinema I Video, 83 N.C. App. at 5552, 568-69, 351 S.E.2d at 311,
320)). Thus, as is evidenced by the legislative decision to title the relevant legislation
as “An Act To Strengthen the Obscenity Laws of this State and the Enforcement of
These Laws, To Protect Minors from Harmful Material that Does Not Rise to the
Level of Obscenity, and To Stop the Sexual Exploitation and Prostitution of Minors,”
see Act of July 11, 1985, ch. 703, 1985 N.C. Sess. Laws 929, we have no hesitation in
concluding that the General Assembly enacted N.C.G.S. § 14-190.16(a)(1) for the
purpose of protecting minors from the harms arising from the “use[ ], employ[ment],
induce[ment], coerc[ion], encourage[ment], or facilitat[ion] [of] a minor to engage in
or assist others to engage in sexual activity for live performance or for the purpose of
producing material that contains a visual representation depicting this activity.”
N.C.G.S. 14-190.16(a)(1). As a result, we believe that the General Assembly intended
that the relevant statutory language be construed broadly in order to provide minors
with the maximum reasonably available protection from sexual exploitation.
Adoption of the definition of “oral intercourse” as requiring proof of penetration
as contended for by defendant would contravene this understanding of the relevant
legislative intent by narrowing the scope of the protections from the sexual
exploitation of minors afforded by N.C.G.S. § 14-190.16(a)(1). Although this Court
-25-
STATE V. FLETCHER
Opinion of the Court
has consistently held that other forms of “intercourse” require “penetration, however
slight,” that definition appears to have been limited in recent years to sexual acts
that inherently involve penetration of the body of another by the male sex organ. See,
e.g., State v. Brown, 312 N.C. 237, 244-45, 321 S.E.2d 856, 861 (1984) (defining
vaginal intercourse as the “slightest penetration of the female sex organ by the male
sex organ”); State v. Atkins, 311 N.C. 272, 275, 316 S.E.2d 306, 308 (1984) (stating
that anal intercourse “requires penetration of the anal opening . . . by the penis”).
“When a term has long-standing legal significance, it is presumed that legislators
intended the same significance to attach by use of that term, absent indications to
the contrary.” Black v. Littlejohn, 312 N.C. 626, 639, 325 S.E.2d 469, 478 (1985)
(quoting Sheffield v. Consol. Foods Corp., 302 N.C. 403, 427, 276 S.E.2d 422, 437
(1981)). For that reason, we conclude that the references to vaginal and anal
intercourse contained in N.C.G.S. § 14-190.13(5)(b) assume the existence of a
penetration requirement. On the other hand, we believe that, when read in context,
“oral intercourse” was intended as a gender-neutral reference to cunnilingus and
fellatio, which are the only components of the definition of “sexual act” as currently
set out in N.C.G.S. § 14-27.20(4) that are not otherwise explicitly included in the
definition of “sexual activity” contained in N.C.G.S. § 14-190.13(5).10 As we have
10 Appellate courts in other jurisdictions have reached similar conclusions. For
example, the South Carolina Court of Appeals held that cunnilingus constituted “sexual
battery,” statutorily defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or
any intrusion, however slight, of any part of a person’s body or of any object into the genital
or anal opening of another person’s body,” despite the absence of penetration. State v.
-26-
STATE V. FLETCHER
Opinion of the Court
previously recognized, neither fellatio nor cunnilingus, as those terms are currently
used in N.C.G.S. § 14-27.20(4), require penetration. State v. Goodson, 313 N.C. 318,
319, 327 S.E.2d 868, 869 (1985) (defining “fellatio” as “oral sex” performed by a female
upon a male consisting of “contact between the mouth of one party and the sex organs
of another” without making any mention of penetration); Ludlum, 303 N.C. at 669,
281 S.E.2d at 161 (stating that “[w]e do not agree, however, that penetration is
required before cunnilingus, as that word is used in the statute, can occur”). In light
of the obvious legislative intent to provide broad protection against the sexual
exploitation of minors, the fact that the existence of a penetration requirement with
respect to “vaginal intercourse” and “anal intercourse” does not logically compel a
determination that “oral intercourse” includes a penetration requirement as well, the
inconsistent treatment between the offense of sexual exploitation of a minor and
Morgan, 352 S.C. 359, 365, 574 S.E.2d 203, 206 (S.C. Ct. App. 2002) (emphasis omitted)
(quoting S.C. Code Ann. § 16-3-651(h) (1985)); see also Stephan v. State, 810 P.2d 564, 568
(Alaska Ct. App. 1991) (stating that cunnilingus constituted “sexual penetration,” defined as
“genital intercourse, cunnilingus, fellatio, anal intercourse, or an intrusion, however slight,
of an object or any part of a person’s body into the genital or anal opening of another person’s
body,” despite the absence of penetration) (quoting Alaska Stat. Ann. § 11.81.900(b)(53)
(1991)); State v. Beaulieu, 674 A.2d 377, 378 (R.I. 1996) (per curiam) (concluding that
cunnilingus, in the absence of evidence of penetration, establishes a defendant’s guilt of first-
degree sexual assault given that R.I. Gen. Laws 1956 § 11-37-1(8) “does not require actual
penetration, only sexual penetration”); State v. Marcum, 109 S.W.3d 300, 303 & n.4, 304
(Tenn. 2003) (holding that a defendant was not entitled to a jury instruction concerning the
issue of his guilt of attempted rape of child based upon fellatio, without evidence of actual
penetration, given the statutory definition of “sexual penetration” as “sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of
[the] person’s body or of any object into the genital or anal openings of the victim’s, the
defendant’s, or any other person’s body”) (quoting Tenn. Code Ann. § 39-13-501(7) (1997)).
-27-
STATE V. FLETCHER
Opinion of the Court
sexual offense that would result from the interpolation of a penetration requirement
into the definition of “oral intercourse,” and the desirability of avoiding “saddl[ing]
the criminal law with hypertechnical distinctions and the prosecution with overly
complex and in some cases impossible burdens of proof,” Ludlum, 303 N.C. at 672,
281 S.E.2d at 162,11 we decline to adopt defendant’s proposed definition of “oral
intercourse” as containing a penetration requirement and conclude, that since
defendant’s requested instruction did not constitute an accurate statement of the
applicable law, see Shaw, 322 N.C. at 804, 370 S.E.2d at 550, the trial court did not
err by refusing to instruct the jury in accordance with defendant’s request. As a
result, for the reasons set forth above, the decision of the Court of Appeals, as
modified in this opinion, is affirmed.
MODIFIED AND AFFIRMED.
11 The fact that defendant’s conviction for first degree sexual exploitation of a minor
rests upon conduct that would also be included within the scope of another subsection of
definition of “sexual activity” set out N.C.G.S. § 14-190.13(5) does not necessitate the
inclusion of a penetration requirement into the definition of “oral intercourse” given that
there is much overlap in the conduct described in the various components of that definition.
For example, both vaginal and anal intercourse, as this Court has defined those terms, would
appear to involve “[t]ouching, in an act of apparent sexual stimulation or sexual abuse, of the
clothed or unclothed genitals, pubic area, or buttocks of another person or the clothed or
unclothed breasts of a human female.” N.C.G.S. § 14-190.13(5)(c).
-28-
Justice MORGAN concurring in part and concurring in the result only in part.
I concur with the majority decision’s reasoning and holding that the
prosecutor’s challenged statements—that manipulating innocent images so that they
appear to show a child engaged in a sexual act is manufacturing child pornography
and thus constitutes first-degree sexual exploitation of a minor—were erroneous, but
not prejudicial.
With regard to the denial of defendant’s request for a jury instruction defining
“oral intercourse,” I further concur with the majority’s ultimate determination that
defendant is not entitled to a new trial on that basis. Nonetheless, I reach this result
only because I believe that defendant cannot establish prejudice, and not on the basis
that the trial court did not err in refusing to give defendant’s requested definition.
Proper application of principles of statutory interpretation demonstrates that the
term “oral intercourse” as used in the sexual exploitation statutes is defined as
requiring penetration, however slight, of the mouth by the male sex organ.
Accordingly, the trial court should have so instructed the jury at defendant’s request.
Before addressing the divergence of my analysis from that of the majority on
this issue, I first note three key points of agreement with my esteemed colleagues.
First, the issue of whether, in the context of our State’s sexual exploitation statutes,
“oral intercourse” requires penetration presents a matter of first impression for this
Court. Second, because “oral intercourse” is not clearly defined in case law, statutes,
or general usage dictionaries, we must employ principles of statutory construction to
determine the meaning of the term. Third, and most critically, I emphatically agree
STATE V. FLETCHER
Morgan, J., concurring in part and concurring in result only in part.
with the majority that the General Assembly undoubtedly intended for the sexual
exploitation statutes to apply to the sex acts that defendant committed against Diane.
For purposes of sexual exploitation, as well as other public morality and
decency offenses concerning minors, N.C.G.S. § 14-190.13 (the definitions statute)
defines “[s]exual activity” to encompass numerous acts, including “[m]asturbation”;
“[v]aginal, anal, or oral intercourse”; the sexually stimulating or sexually abusive
touching of the genitals, pubic area, or buttocks of another, or of the female breasts;
sexualized torture, bondage, and sadomasochistic behaviors; “[e]xcretory functions”;
penetration of the vagina or anus by an object or a body part other than the male sex
organ; and “lascivious exhibition of the genitals or pubic area.” N.C.G.S. § 14-
190.13(5)(a)-(g) (2015). This review illustrates the broad range and diverse nature of
the acts that the General Assembly sought to prohibit in protecting children from the
harms of pornography and sexual exploitation. In light of this important purpose and
the lengthy enumeration of acts that constitute sexual activity, I consider it to be
beyond question that the General Assembly intended that, for purposes of the crime
of sexual exploitation of a minor, the term “sexual activity” should include both the
penetration of the mouth by the male sex organ as well as the mere touching of the
male sex organ with the mouth, even without penetration.
It is at this stage, however, that my analysis of the proper means to arrive at
the correct outcome in this case diverges from the rationales employed by my learned
colleagues. The necessary goal of the protection of society’s vulnerable minors from
-30-
STATE V. FLETCHER
Morgan, J., concurring in part and concurring in result only in part.
sexual exploitation can still be accomplished in our courts without compromising this
Court’s well-established and long-standing recognition of the need to construe
statutes consistently. Such expected consistency would certainly include a
construction of terminology that is harmonious throughout the spectrum of statutory
enactments which address a given area of the criminal law. While these fundamental
principles of statutory construction are deeply embedded in analyses routinely
applied by this Court, the majority unfortunately departs from them in its
interpretation of the term “intercourse” when we are called upon to ascribe a
definition to the term “oral intercourse.”
Upon this premise, I do not subscribe to the majority’s unsupported assertion
that “[a]doption of the definition of ‘oral intercourse’ as requiring proof of penetration
. . . would contravene this understanding of the relevant legislative intent by
narrowing the scope of protections” under the sexual exploitation statute.1
Application of the well-established rules of statutory construction reveals that the
mere touching of the male sex organ with the mouth falls under subdivision (5)(c) of
the definitions statute—“[t]ouching, in an act of apparent sexual stimulation or
1 Likewise, the State argued that mere touching of a sex organ with the mouth can
only fall under subdivision (5)(b) as a form of “oral intercourse” and asserted that, were this
Court to hold that “oral intercourse” requires penetration, a visual representation depicting
the act of touching a child’s lips with a penis could not support a prosecution for sexual
exploitation. As with all cases, the State must simply take care to indict a defendant correctly
under the applicable statutory provision in light of the behavior constituting a criminal
offense.
-31-
STATE V. FLETCHER
Morgan, J., concurring in part and concurring in result only in part.
sexual abuse, of the clothed or unclothed genitals”—while the penetration of the
mouth by the male sex organ falls under subdivision (5)(b), which includes, inter alia,
“oral intercourse.” Id. § 14-190.13(5)(b), (c). Therefore, the specific sexual activity for
which defendant allegedly used Diane is a form of sexual exploitation of a minor,
namely, sexual touching and not “oral intercourse.” This distinction is neither trivial
nor academic since, as defendant observes, here “the State elected to exclusively
indict under a theory of ‘oral intercourse,’ and it was bound to prove that theory.” See
State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980) (A defendant may not
be “convict[ed] upon some abstract theory not supported by the bill of indictment.”).
When, as here, a statutory term is not clear, any “ambiguity should be resolved
so as to effectuate the true legislative intent.” State ex rel. Comm’r of Ins. v. N.C.
Auto. Rate Admin. Office, 287 N.C. 192, 202, 214 S.E.2d 98, 104 (1975) (citing Duncan
v. Carpenter & Phillips, 233 N.C. 422, 64 S.E.2d 410 (1951), overruled on other
grounds by Taylor v. J. P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144 (1980), McLean
v. Durham Cty. Bd. of Elections, 222 N.C. 6, 21 S.E.2d 842 (1942), and State ex rel.
Thomasson v. Patterson, 213 N.C. 138, 195 S.E. 389 (1938)). In my view, the point of
ambiguity here is simply whether the General Assembly intended to regard the
undefined act of “oral intercourse” in the same manner as the other acts listed in
N.C.G.S. § 14-190.13(5)(b) that contain the word “intercourse” and are clearly defined,
or in the same manner as acts included in N.C.G.S. § 14-190.13(5)(f) as a form of
sexual touching. In construing a statute, we presume that none of its subdivisions
-32-
STATE V. FLETCHER
Morgan, J., concurring in part and concurring in result only in part.
are redundant. Sheffield v. Consol. Foods Corp., 302 N.C. 403, 421-22, 276 S.E.2d
422, 434 (1981) (citing Jones v. Cty. Bd. of Educ., 185 N.C. 303, 307, 117 S.E. 37, 39
(1923)). Accordingly, I proceed on the presumption that the subdivisions of the
definitions statute are not duplicative and that the touching of a male sex organ to
the mouth or lips without penetration is covered under only one of them.
As acknowledged in the majority decision, this Court has consistently held that
other forms of “intercourse” require penetration with the male sex organ, however
slight. See, e.g., State v. Brown, 312 N.C. 237, 244-45, 321 S.E.2d 856, 861 (1984)
(stating that vaginal intercourse includes the “slightest penetration of the female sex
organ by the male sex organ”); State v. Atkins, 311 N.C. 272, 275, 316 S.E.2d 306, 308
(1984) (stating that anal intercourse “requires penetration of the anal opening . . . by
the penis”). The majority suggests that this definition of “intercourse” has “been
limited in recent years2 to sexual acts that inherently involve penetration of the body
of another by the male sex organ.” While this observation may have some interesting
historic validity, it bears no substantive legal applicability. The legal terms “anal
intercourse” and “vaginal intercourse” are explicitly defined as the penetration of the
anus and vagina, respectively, by the male sex organ. Thus, the penetration element
of “anal intercourse” and “vaginal intercourse” is only “inherent” to these acts in the
2 I would observe that the sexual exploitation statutes were first enacted in 1985. The
General Assembly’s understanding and intent in its statutory enactments before 1985 that
are still valid, and the applicable case law interpreting them that also is still valid, should
not be discounted merely because they are older.
-33-
STATE V. FLETCHER
Morgan, J., concurring in part and concurring in result only in part.
way that the defining characteristics of any sex act are. In this regard, elementary
principles of statutory construction yield the conclusion that a consistent
interpretation of the word “intercourse” inherently contemplates “penetration.”
In determining legislative intent, I discern no evidence that the General
Assembly intended to “limit” or alter the meaning of the term “intercourse” when it
drafted the sexual exploitation laws in 1985. The definition of “intercourse” as
requiring penetration by the male sex organ appears in decisions of this Court dating
back at least to the middle of the twentieth century, nearly seven decades ago.3 See,
e.g., State v. Bowman, 232 N.C. 374, 375-76, 61 S.E.2d 107, 108 (1950) (“There is
‘carnal knowledge’ or ‘sexual intercourse’ in a legal sense if there is the slightest
penetration of the sexual organ of the female by the sexual organ of the male.”). As
noted by the majority, “[w]hen a term has long-standing legal significance, it is
presumed that legislators intended the same significance to attach by use of that
term, absent indications to the contrary.” Black v. Littlejohn, 312 N.C. 626, 639, 325
S.E.2d 469, 478 (1985) (quoting Sheffield, 302 N.C. at 427, 276 S.E.2d at 437).
Because our case law as demonstrated in Bowman had clearly defined “intercourse”
as requiring penetration by the male sex organ some thirty-five years before the
enactment of the sexual exploitation statutes in 1985, the General Assembly must be
3Similarly, general usage dictionaries define “sexual intercourse” as “sexual contact
between individuals involving penetration, esp. the insertion of a man’s erect penis into a
woman’s vagina.” New Oxford American Dictionary 1601 (3d ed. 2010) (emphasis added).
-34-
STATE V. FLETCHER
Morgan, J., concurring in part and concurring in result only in part.
viewed to have intended this same word in the phrase “oral intercourse” to also
require penetration.
This legislative intent appears even clearer in light of the other terms that the
General Assembly has employed to encompass contact between the mouth and sexual
organs without the requirement of penetration. See, e.g., N.C.G.S. § 14-27.20(4), (5)
(2015) (defining, for purposes of rape and other sex offenses, the term “sexual act” as
excluding vaginal intercourse, but including “cunnilingus, fellatio, analingus, . . . anal
intercourse,” and “the penetration, however slight, by any object into the genital or
anal opening of another person’s body,” and the term “[s]exual contact” as “(i)
touching the sexual organ, anus, breast, groin, or buttocks of any person, (ii) a person
touching another person with their own sexual organ, anus, breast, groin, or buttocks,
or (iii) a person ejaculating, emitting, or placing semen, urine, or feces upon any part
of another person”) (emphases added). Further, it is evident that the General
Assembly was aware of other phraseology for conduct that involves touching of sex
organs with the mouth but without a penetration requirement. See also State v.
Goodson, 313 N.C. 318, 319, 327 S.E.2d 868, 869 (1985) (defining fellatio and oral sex,
neither of which require penetration); State v. Ludlum, 303 N.C. 666, 672, 281 S.E.2d
159, 162 (1981) (defining cunnilingus as not requiring penetration).4 The majority’s
4Likewise, in contrast to the dearth of definitions for “oral intercourse” in general
usage dictionaries, the term “oral sex” is defined—consistently—in such sources as the oral
stimulation of another’s sex organ, without any requirement of penetration. See, e.g., New
Oxford American Dictionary 1233 (3d ed. 2010) (defining oral sex as “sexual activity in which
-35-
STATE V. FLETCHER
Morgan, J., concurring in part and concurring in result only in part.
efforts to deftly move between and among this myriad of sexual acts in an effort to
harmonize their definitions with the majority’s brittle approach to statutory
construction here present an awkward fit in the symmetry of the pertinent laws. Yet,
in its wisdom, the General Assembly did not use any of those terms for purposes of
sexual exploitation, instead selecting a word with a well-known, long-standing
meaning: “intercourse.”
Further indication of the intended meaning of the term “oral intercourse” can
be derived from the General Assembly’s focus in the definitions statute on
distinguishing between sexual acts that involve penetration by the male sex organ
and those which do not. The legislature chose to separately list “vaginal intercourse”
and “anal intercourse”—acts the majority agrees require penetration of the vagina
and anus with the male sex organ—in N.C.G.S. § 14-190.13(5)(b); penetration of the
vagina and anus with any other body part or object—in N.C.G.S. § 14-190.13(5)(f);
and mere touching of the male or female genital area—in N.C.G.S. § 14-190.13(5)(c).
Despite this plain language regarding vaginal and anal sexual activity, the majority
concludes that “oral intercourse” alone does not require penetration because the term
was intended by the General Assembly “as a gender-neutral reference to ‘cunnilingus’
the genitals of one partner are stimulated by the mouth of the other; fellatio or cunnilingus”);
The American Heritage Dictionary of the English Language 1236 (4th ed. 2000) (defining oral
sex as “oral stimulation of one’s partner’s sex organs”); Merriam-Webster,
https://www.merriam-webster.com/dictionary/oral%20sex (last visited Nov. 27, 2017) (“oral
stimulation of the genitals: cunnilingus, fellatio”).
-36-
STATE V. FLETCHER
Morgan, J., concurring in part and concurring in result only in part.
or ‘fellatio,’ ” neither of which requires penetration.5 The majority’s interpretation
results in a rather haphazard categorization of various types of sexual activity replete
with redundancy and inconsistency.
In conclusion, I therefore would deem the touching of the genitals by the mouth
without penetration to be included in N.C.G.S. § 14-190.13(5)(c) of the definitions
statute. I would hold that, as used in N.C.G.S. § 14-190.13, the General Assembly
intended that the term “oral intercourse,” like “vaginal intercourse” and “anal
intercourse,” requires penetration by the male sex organ, however slight. Therefore,
I determine that the instruction requested by defendant was “correct in law.” See
State v. Shaw, 322 N.C. 797, 804, 370 S.E.2d 546, 550 (1988).
Because defendant’s requested instruction was raised by the evidence
presented and is legally correct, I would further hold that the trial court erred in
refusing to give it, “at least in substance.” See id. at 804, 370 S.E.2d at 550 (citing
5 I would note that if the legislature wished to refer to “cunnilingus” and “fellatio,” it
could have simply used those two well-defined words in lieu of the previously undefined two-
word phrase “oral intercourse.” See, e.g., Ludlum, 303 N.C. at 672, 281 S.E.2d at 162 (holding
that “the Legislature intended by its use of the word cunnilingus to mean stimulation by the
tongue or lips of any part of a woman’s genitalia” and not requiring penetration); State v.
Smith, 362 N.C. 583, 593, 669 S.E.2d 299, 306 (2008) (defining “fellatio” as “any touching of
the male sexual organ by the lips, tongue, or mouth of another person” and thus not requiring
penetration) (quoting State v. Johnson, 105 N.C. App. 390, 393, 413 S.E.2d 562, 564, appeal
dismissed and disc. review denied, 332 N.C. 348, 421 S.E.2d 158 (1992)). If the General
Assembly wished to employ a gender-neutral term, it could have used another two-word
phrase—“oral sex”—which “describe[es] a sexual act involving ‘contact between the mouth of
one party and the sex organs of another,’ ” but not requiring penetration. Goodson, 313 N.C.
at 319, 327 S.E.2d at 869 (quoting People v. Dimitris, 115 Mich. App. 228, 234, 320 N.W.2d
226, 228 (1981) (per curiam)).
-37-
STATE V. FLETCHER
Morgan, J., concurring in part and concurring in result only in part.
State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968)). Nonetheless, I do not believe
defendant should receive a new trial based on this error, because a defendant is not
entitled to a new trial unless he can also show prejudice, meaning there is “a
reasonable possibility that, had the error in question not been committed, a different
result would have been reached at the trial.” N.C.G.S. § 15A-1443(a) (2015); see also
Shaw, 322 N.C. at 804, 370 S.E.2d at 550. When a defendant fails to meet this
burden, an instructional error will not merit relief. N.C.G.S. § 15A-1443(a); see also
Shaw, 322 N.C. at 804, 370 S.E.2d at 550. In my view, defendant has failed to show
prejudice and therefore is not entitled to a new trial. Accordingly, I ultimately concur
with the result reached by the majority, although based on different reasoning.
-38-