State v. Smith, ___ N.C. ___, ___ S.E.2d ___ (Aug. 14, 2020)

The defendant worked full-time at Knightdale High School, initially as an In-School Suspension teacher and then as a Physical Education teacher. Although not certified as a teacher, he worked the same hours as a certified teacher, which included a regularly scheduled planning period. During his time teaching at the school, the defendant met a minor, D.F., a student at the school. On October 29, 2014, D.F. went to the defendant’s home and later alleged the two engaged in sexual activity.

The defendant was indicted for two counts of engaging in sexual activity with a student pursuant to G.S. 14-27.7. At the close of the State’s evidence, defense counsel made a motion to dismiss based on insufficient evidence, asserting that the State’s evidence was conflicting. The trial court denied the motion. At the end of all the evidence, defense counsel renewed the motion to dismiss, asserting that there was no physical evidence. The trial court again denied the motion, and the defendant was ultimately convicted of two counts of sexual activity with a student.

(1) On appeal, the defendant argued that (1) the evidence at trial did not establish that he was a “teacher” within the meaning of G.S. 14-27.7, and (2) alternatively, there was a fatal variance between the indictment and proof at trial since the indictment alleged that he was a “teacher,” but his status as a substitute teacher made him “school personnel” under G.S. 14-27.7(b). The Court of Appeals concluded that the defendant failed to preserved either argument for appellate review, reasoning that because the defendant’s motions to dismiss “focused on the veracity of D.F.’s testimony and the lack of physical evidence” that sexual conduct had occurred, the defendant preserved a sufficiency of the evidence argument for only that specific element. The Court of Appeals also concluded that the fatal variance argument was not preserved because it was not expressly presented to the trial court.

At the time that the Court of Appeals decided this case, the Supreme Court has not addressed the issue of when a motion to dismiss preserves all sufficiency of the evidence issues for appellate review. Subsequently, in State v. Golder, the Court held that “Rule 10(a)(3) provides that a defendant preserves all insufficiency of the evidence issues for appellate review simply by making a motion to dismiss the action at the proper time.” 374 N.C. 238 (2020). The Court held that because the defendant here made a general motion to dismiss at the appropriate time and renewed that motion to dismiss at the close of the evidence., his motion properly preserved all sufficiency of the evidence issues.

(2) On the merits of the case, the defendant argued that there was no substantial evidence that he was a “teacher” under the statute. G.S. 14-27.7(b) (2013) provides: “For purposes of this subsection, the terms “school”, “school personnel”, and “student” shall have the same meaning as in G.S. 14-202.4(d),” which in turn refers to G.S. 115C-332. The latter statute provides that “school personnel” includes substitute teachers, driving training teachers, bus drivers, clerical staff, and custodians. The Court determined that it was “evident that the General Assembly intended to cast a wide net prohibiting criminal sexual conduct with students by any adult working on school property” and that “a person’s categorization as a ‘teacher’ should be based on a common-sense evaluation of all of the facts of the case, not a hyper-technical interpretation based solely on the individual’s title.”

Despite his lack of certification, defendant was at the school on a long-term assignment, an employee of Wake County Public Schools, and held to the same standards as a certified teacher. Defendant taught at the school daily, had a planning period, and had full access to students as any certified teacher would. The only difference between the defendant and other teachers was his title based on his lack of a teaching certificate at that time. The Court held that the defendant was correctly deemed a teacher in this case and the trial court properly denied the defendant’s motion to dismiss.