State v. Martinez, ___ N.C. App. ___, 801 S.E.2d 356 (May. 16, 2017)

In this child sex case, no prejudicial error occurred when the trial court instructed the jury on a sexual act that was not supported by the evidence. The defendant was convicted of four felonies under G.S. 14-27.4(a)(1) (first degree sexual offense with a child) and two felonies under G.S. 14-27.7(a) (sex offense in a parental role). Both statutes require that the defendant engage in a “sexual act” with the victim. The term sexual act is defined as cunnilingus, fellatio, analingus, or anal intercourse. The evidence at trial showed that the defendant engaged in fellatio and anal intercourse with victim. There was however no evidence that the defendant engaged in analingus with the victim. However, the trial court instructed the jury that it could find the defendant guilty of the six felonies if it found that he committed fellatio, anal intercourse, or analingus with the victim. The court noted that it cannot be discerned from the verdict sheets which theory the jury relied upon to find the defendant guilty. In its first opinion in the case, the court held that the trial court’s inclusion of analingus, where no evidence of that act was offered at trial, constituted plain error per se. The Supreme Court however remanded, instructing the court to revisit its holding in light of State v. Boyd, 366 N.C. 548 (2013). In Boyd, the trial court instructed the jury that it could convict the defendant of kidnapping based on three alternative theories: confinement, restraint, or removal. On appeal to the court of appeals, two members of the panel held that the instruction constituted plain error because there was no evidence that the defendant had removed the victim. A dissenting judge agreed with the majority that the trial court erred by instructing on the theory of removal but disagreed that the error rose to the level of plain error. The dissenting judge did not assume that the jury relied on the theory of removal to support the kidnapping conviction; rather, she cited the overwhelming evidence supporting the other kidnapping theories, confinement and restraint, to conclude that the defendant failed to show that absent the error the jury would have returned a different verdict. The Supreme Court reversed the court of appeals in Boyd, adopting the dissenting opinion from the intermediate appellate court. In this second appeal, the court noted that the Supreme Court’s approach in Boyd represented a shift away from the per se rule that had been previously applied in cases involving disjunctive instructions where one of the theories was not supported by the evidence. Turning to the case at hand, the court concluded that the defendant failed to meet his burden of showing that the trial court’s inclusion of analingus in the jury instruction had any probable impact on the verdict. It noted that the victim was clear in her testimony regarding the occasions where fellatio and anal intercourse had occurred.