               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 119PA18

                               Filed 14 August 2020

STATE OF NORTH CAROLINA

              v.
CHRISTOPHER NATHANIEL SMITH


      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,

unpublished decision of the Court of Appeals, State v. Smith, No. COA17-680, 2018

WL 1598522 (N.C. Ct. App. Apr. 3, 2018), finding no error in part and remanding for

resentencing a judgment entered on 8 July 2016 by Judge Reuben F. Young in

Superior Court, Wake County. Heard in the Supreme Court on 8 January 2020.


      Joshua H. Stein, Attorney General, by Tiffany Y. Lucas, Special Deputy
      Attorney General, for the State.

      Yoder Law PLLC, by Jason Christopher Yoder, for defendant.


      NEWBY, Justice.

      In this case we decide whether defendant’s motion to dismiss preserved for

appellate review all sufficiency of the evidence challenges, and if so, whether

defendant qualifies as a teacher under N.C.G.S § 14-27.7. Though at trial defendant

made arguments about only one specific element of the crime with which he was

charged in support of his motion to dismiss, defendant’s timely motion and his timely

renewal of that motion preserved for appellate review all sufficiency of the evidence

issues. Nevertheless, the trial court properly denied defendant’s motion to dismiss
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                                   Opinion of the Court



since, based on the facts of his case, defendant was properly categorized as a “teacher”

under our criminal statutes prohibiting sexual offenses with students. Thus, we

modify and affirm the Court of Appeals decision upholding defendant’s convictions.

      The evidence at trial showed the following: though denominated as a

“substitute teacher,” defendant worked full-time at Knightdale High School, initially

as an In-School Suspension (ISS) teacher and then as a Physical Education (PE)

teacher. He worked the same hours as a certified teacher, which included a regularly

scheduled planning period. He taught at the school on a long-term assignment and

was an employee of Wake County Public Schools. Defendant began the position with

hopes of becoming a certified teacher. While defendant did not have his teaching

certificate, his transition to the PE department was intended for him to “get a feel

for” the position so he would have experience and “be ready” when he tested to receive

his certificate and began to serve as a licensed teacher through lateral entry.

Defendant met minor D.F., a student at Knightdale High, during his time teaching

at the school. On 29 October 2014 D.F. went to defendant’s home. D.F. alleged the

two engaged in sexual activity.

      D.F.’s father became suspicious of D.F. and defendant’s relationship, so he

brought his concerns to the school’s attention. After an internal investigation, the

school’s resource officer reported the matter to the Raleigh Police Department.




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Defendant was thereafter indicted for two counts of engaging in sexual activity with

a student pursuant to N.C.G.S. § 14-27.7 (2013)1. The indictment alleged that:

              I. [O]n or about October 29, 2014, in Wake County, the
              defendant named above unlawfully, willfully, and
              feloniously did engage in vaginal intercourse with
              D.F. . . . At the time of this offense, the defendant was a
              teacher at Knightdale High School and the victim was a
              student at this same school. . . . This act was done in
              violation of N[.]C[.]G[.]S[.] § 14-27.7(B).

              II. [O]n or about October 29, 2014, in Wake County, the
              defendant named above unlawfully, willfully, and
              feloniously did engage in a sexual act with D.F. . . . At the
              time of this offense, the defendant was a teacher at
              Knightdale High School and the victim was a student at
              this same school. . . . This act was done in violation of
              N[.]C[.]G[.]S[.] § 14-27.7(B).

       The case proceeded to trial. At the close of the State’s evidence, defense counsel

made a motion to dismiss based on insufficient evidence. He asserted the following:

              Your Honor, we would like to make a Motion to Dismiss.
              Very briefly, the State hasn’t met every element of the
              charge. I don’t think there are – I know that the Court is to
              take every inference in the light most favorable to the State
              but there’s also case law when the State’s case conflict [sic]
              to such a degree the Court is to take that into
              consideration. We would argue this is that type of case,
              Your Honor.

              The victim has stated that sexual intercourse lasted five
              minutes. She then stated the next day it was between 20
              and 30 minutes. She then stated in court it was between 10


       1 Because the 2013 version of N.C.G.S. § 14-27.7 was the controlling version of the
statute when the events occurred here, we utilize the 2013 version in this opinion. We note,
however, that the statute has since been recodified as N.C.G.S. §§ 14-27.31, 14-27.32 (2015).

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             and 15 minutes. There is evidence of the victim not being
             credible, Your Honor.

             There is a police report where she told her dad that she
             saved the contact information under “parentheses A.”
             There was evidence that she told the officer that it was
             under “dot dot dot.” There’s evidence that she was
             interviewed by the officer and she didn’t give the officer
             information. At first she said, well, I didn’t, I wouldn’t lie;
             I would just omit information, and then she changed that
             to hide information. She didn’t tell information about
             marijuana. She was interviewed by Officer Emser twice
             and she didn’t give information about alleged oral sex
             occurring on November 11. She was interviewed by two
             officers. But then she comes here in court and says that the
             act did occur.

             Your Honor, based on this evidence we would ask that you
             find that the State’s evidence conflicts to such a degree that
             the Motion to Dismiss should be granted.

      The trial court denied the motion. At the end of all the evidence, defense

counsel renewed the motion to dismiss:

             Your Honor, at the end of all the evidence the Defendant
             would like to renew his Motion To Dismiss. There’s no
             physical evidence. We would argue the eight pillows, the
             bottom sheet, the comforter, the blanket and the Toshiba
             laptop were not tested. There’s been conflict in the victim’s
             own testimony. Based on that we would renew our Motion
             to Dismiss.

      The trial court again denied the motion. Ultimately, the jury convicted

defendant of two counts of sexual activity with a student.

      Defendant appealed, arguing to the Court of Appeals, inter alia, that the trial

court erroneously denied his motion to dismiss because the evidence at trial did not



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                                  Opinion of the Court



establish that he was a “teacher” within the meaning of N.C.G.S. § 14-27.7(b). In the

alternative, defendant argued that his motion to dismiss should have been granted

because there was a fatal variance between the indictment and proof at trial since

the indictment alleged defendant was a “teacher,” but his status as a substitute

teacher made him “school personnel” under section 14-27.7(b).

      The Court of Appeals concluded that defendant had failed to preserve either

argument for appellate review. State v. Smith, 2018 WL 1598522, at *3 (N.C. Ct. App.

Apr. 3, 2018). The Court of Appeals reasoned that, though a general motion to dismiss

preserves for appellate review all arguments on the sufficiency of the evidence, id. at

*2 (citing State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956)), when a

defendant makes a more specific motion to dismiss, he only preserves for appellate

review a sufficiency of the evidence argument for that specific element argued, id. at

*3. Thus, it opined that any other sufficiency of the evidence argument pertaining to

other elements of the crime would not be preserved by a defendant’s motion to

dismiss. Id. (citing State v. Walker, 252 N.C. App. 409, 411–12, 798 S.E.2d 529, 530–

31 (2017), abrogated by State v. Golder, 374 N.C. 238, 839 S.E.2d 782 (2020)). The

Court of Appeals noted that defendant’s initial motion to dismiss “focused on the

veracity of D.F.’s testimony and the lack of physical evidence supporting the

allegations that any sexual conduct had occurred,” which defendant narrowed in his

renewed motion to dismiss when he referenced the preceding arguments and stated

that his renewed motion was “based on [those arguments.]” Id. at *3. Thus, because

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it believed defendant had limited his motion to a single element, “whether sexual

activity had occurred,” the Court of Appeals concluded that defendant had not

preserved appellate review of any argument based on whether he qualified as a

teacher under the applicable statute. Id.2 The Court of Appeals also concluded that

defendant’s fatal variance argument was not preserved because it was not expressly

presented to the trial court. Id.

       Before this Court, defendant first asserts that he sufficiently preserved for

appellate review all sufficiency of the evidence issues through his motion to dismiss

at trial. At the time that the Court of Appeals decided this case, this Court had not

addressed the specific issue of when a motion to dismiss preserves all sufficiency of

the evidence issues for appellate review. Subsequently, this Court examined that

question in State v. Golder, 374 N.C. 238, 839 S.E.2d 782 (2020). In Golder, we 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.” Id. Thus, as set forth in Golder, under Rule 10(a)(3), so long as a

defendant moves to dismiss a case at the appropriate times, his motion preserves “all

issues related to the sufficiency of the evidence for appellate review.” Id. Because




       2 The Court of Appeals also addressed defendant’s argument that “if his trial counsel
failed to preserve th[e substantive] issue for appeal, then he received ineffective assistance
of counsel.” Smith, 2018 WL 1598522, at *4. Because we ultimately conclude that defendant
preserved his argument through the motion to dismiss at trial, we need not reach defendant’s
ineffective assistance of counsel claim.

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defendant here made a general motion to dismiss at the appropriate time and

renewed that motion to dismiss at the close of all the evidence, his motion properly

preserved all sufficiency of the evidence issues.

      On the merits of his case, defendant argues there was not substantial evidence

that he was a “teacher” under the statute. He claims his position is better

denominated as “substitute teacher,” which falls under “school personnel.” Thus

defendant’s argument requires us to evaluate the language of several statutes.

      N.C.G.S. § 14-27.7(b) (2013) provides that

             If a defendant, who is a teacher, school administrator,
             student teacher, school safety officer, or coach, at any age,
             or who is other school personnel, and who is at least four
             years older than the victim engages in vaginal intercourse
             or a sexual act with a victim who is a student, at any time
             during or after the time the defendant and victim were
             present together in the same school, but before the victim
             ceases to be a student, the defendant is guilty of a Class G
             felony . . . . 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).

      Section 14-202.4, which criminalizes taking indecent liberties with a student,

states that “ ‘[s]chool personnel’ means any person included in the definition

contained in G.S. 115C-332(a)(2), and any person who volunteers at a school or school-

sponsored activity.” N.C.G.S. § 14-202.4(d)(3) (2013). The statute referenced in

section 14-202.4 is not within the chapter of the North Carolina General Statutes

relating to criminal law but falls under a section about criminal history checks within



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                                    Opinion of the Court



North Carolina’s education statutes. Section 115C-332 casts a wide net defining the

identity of individuals who should be subjected to criminal history checks in a

seeming attempt to require background checks for all those who interact with

students in the school system. Therefore, section 115C-332 provides that

             (2) “School personnel” means any:

                   a. Employee of a local board of education whether
                   full-time or part-time, or

                   b. Independent contractor or employee of an
                   independent contractor of a local board of education,
                   if the independent contractor carries out duties
                   customarily performed by school personnel,

             whether paid with federal, State, local, or other funds, who
             has significant access to students. School personnel
             includes substitute teachers, driving training teachers, bus
             drivers, clerical staff, and custodians.

N.C.G.S. § 115C-332(a)(2) (2013).

      Here we are asked to construe these statutes and determine what the General

Assembly intended by the reference to teachers in N.C.G.S. § 14-27.7(b). It is a well-

established principle of statutory construction that “the intent of the Legislature

controls.” In re Hardy, 294 N.C. 90, 95, 240 S.E.2d 367, 371 (1978). In evaluating all

of the above statutes, it is evident that the General Assembly intended to cast a wide

net prohibiting criminal sexual conduct with students by any adult working on school

property. It is clear that the legislature intended that each category be read broadly

with a common-sense understanding. A person’s categorization as a “teacher” should



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be based on a common-sense evaluation of all the facts of the case, not a hyper-

technical interpretation based solely on the individual’s title. Such a case-by-case

analysis involves evaluating, among other circumstances, whether the individual is

serving in a full-time or truly part-time position, and whether the individual is in fact

teaching students on a regular basis. Taking into account all circumstances in a

specific case to determine whether an individual is a “teacher” under N.C.G.S. § 14-

27.7 serves the intended purpose by giving a common-sense interpretation of the word

“teacher” and protecting students from sexual offenses by adults serving within the

school system.

      This reasoning is supported by the fact that N.C.G.S. § 115C-332(a)(2) makes

clear that the legislature intended to subject anyone working in a school-related role,

even ones with less face-to-face access to students such as custodians and non-

employees of the school system, to criminal history checks to ensure the protection of

students. Therefore, the statutory reference to “substitute teacher” under “school

personnel” does not preclude someone with the title of substitute teacher from

actually being a “teacher” for purposes of the criminal statute, N.C.G.S. § 14-27.7. To

the contrary, whether an individual is a teacher under the criminal statute depends

on the facts of the case and the nature of the position in which the individual served.

      Thus, the facts of this case, not merely defendant’s title, determine whether he

was a “teacher” under the statute. The evidence indicated that defendant was in a

full-time position. Defendant testified that in serving as a PE teacher, his

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understanding of the job was that he would work full-time and “be a teacher without

my certification.” Defendant served as an ISS teacher for a month on a regular basis

before moving into the PE spot, which also provided a full-time schedule. This move

to the PE department was intended for defendant to “get a feel for” the position so he

would have experience and “be ready” when he qualified to receive his certificate and

serve as a licensed teacher through lateral entry. 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 defendant and other

teachers was his title based on his lack of a teaching certificate at that time.

      Given the statute’s clear intent to protect students from sexual encounters

with adults working in their schools, it is evident that the various titles set forth in

the relevant statutory language should be interpreted functionally, taking into

account the nature in which an individual served, as opposed to simply considering

the individual’s title in a hyper-technical manner. The position defendant fulfilled

falls within the “teacher” category as described by N.C.G.S. § 14-27.7. While every

substitute teacher may not qualify as a “teacher” under the statute, given the

circumstances and facts of this case, defendant fell within the “teacher” category

under the statute.




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      Because we conclude that defendant was correctly deemed a teacher in this

case, the same analysis would apply to defendant’s secondary argument—that the

trial court erred in denying defendant’s motion to dismiss because there was a fatal

variance between the indictment, alleging that defendant was a teacher, and the

evidence at trial, which he asserts showed that defendant was actually “school

personnel.” Therefore, assuming without deciding that defendant’s fatal variance

argument was preserved, defendant’s argument would not prevail for the same

reasoning.

      Since defendant moved to dismiss at the appropriate time at trial and timely

renewed his motion, he sufficiently preserved for appellate review whether the State

presented sufficient evidence of each element of the crime for which he was convicted.

Nonetheless, the trial court properly denied defendant’s motion to dismiss as

defendant falls within the teacher category as defined in N.C.G.S. § 14-27.7. The

Court of Appeals decision is therefore modified and affirmed.

      MODIFIED AND AFFIRMED.




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