State v. Scott, ___ N.C. App. ___, 2021-NCCOA-355 (Jul. 20, 2021)

The defendant in this case was charged with sexual activity by a substitute parent under G.S. 14-27.31. The defendant lived at the home of the victim and her mother, and he was the father of the victim’s sister. In 2016, while the victim’s mother was out of the house, the defendant engaged in three different sexual acts with the victim. The victim told her mother, who notified law enforcement, and the defendant was arrested and indicted. The defendant’s first trial ended in a mistrial on two counts, but he was retried and convicted on both. On appeal, the defendant raised two issues.

First, the defendant argued that the trial court erred in allowing the state to amend the indictments by including the words “[a]t the time of the offense, the defendant
was residing in the home with” the victim, contending that this was a substantial alteration of the charge. The appellate court disagreed. The original language used in the indictment adequately alleged that the defendant had assumed the position of a parent in the home of the victim, who was less than 18 years old, and engaged in a sexual act with that person, thereby satisfying all the essential elements of the offense. Since the indictment was already facially valid, and it was not necessary under the statute to allege that the defendant also resided at the home, the amendment did not add an essential element and was not a substantial alteration of the charge.

The defendant also argued that it was error for him to receive two consecutive sentences because the predicate acts for both charges occurred during the same incident. The appellate court viewed this argument as “recasting a double jeopardy argument that has not been preserved for appellate review as a hybrid challenge to the unanimity of the verdict and sufficiency of the indictment,” and held there was no error. The two charges were supported by separate and distinct sexual acts, and the jury instructions and verdict sheets clearly indicated the jury was unanimous as to each of those charges; therefore, the trial court did not err in imposing consecutive sentences for the two offenses.