State v. Harris, 243 N.C. App. 728 (Nov. 3, 2015)

Where the indictment charged the defendant with sexual offense in violation of G.S. 14-27.4(a)(1) (first-degree statutory sex offense with a child under the age of 13), the trial court erred by instructing the jury on sexual offense with a child in violation of G.S. 14-27.4A(a) (statutory sexual offense by an adult). The court noted that the charged offense was a lesser included of the offense of conviction, and that while the charged offense requires the State to prove that the defendant was at least 12 years old and at least 4 years older than the victim, the offense of conviction requires proof that the defendant is at least 18 years old. The court found itself bound by State v. Hicks, 239 N.C. App. 396 (Feb. 17, 2015), vacated the conviction and remanded for resentencing on the lesser included offense.