               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 397A18

                             Filed 27 September 2019

STATE OF NORTH CAROLINA

             v.
BOBBY DEWAYNE HELMS


      Appeal pursuant to N.C.G.S. § 7A-30(2) from the unpublished decision of a

divided panel of the Court of Appeals, No. COA18-12, 2018 WL 4701732 (N.C. Ct.

App. Oct. 2, 2018), finding no error in judgments entered on 4 May 2017 by Judge

Christopher W. Bragg in Superior Court, Union County. Heard in the Supreme Court

on 28 August 2019.



      Joshua H. Stein, Attorney General, by Alexandra Gruber, Assistant Attorney
      General, for the State.

      Ann B. Petersen for defendant-appellant.


      HUDSON, Justice.


      The case comes to us based on a dissenting opinion in the Court of Appeals.

The issue before the Court is whether the Court of Appeals majority erred when it

determined that the State presented sufficient evidence of the N.C.G.S. § 15A-

1340.16(d)(15) aggravating factor—that defendant “took advantage of a position of

trust or confidence, including a domestic relationship, to commit the offense[s]”—to

submit that aggravating factor to the jury. Because we conclude there was not
                                        STATE V. HELMS

                                       Opinion of the Court



sufficient evidence to submit the aggravating factor to the jury, we reverse the

decision of the Court of Appeals and remand this matter for a new sentencing hearing

without the consideration of the section 15A-1340.16(d)(15) aggravating factor.

                                Factual and Procedural Background

      On 6 July 2015, Defendant was indicted for two counts of engaging in a sex

offense with a child under the age of thirteen years, in violation of section 14-

27.4(a)(1) of the General Statutes. Those indictments were later joined for trial with

two additional indictments for taking indecent liberties with a child.

      The victim, L.F.,1 was born on 23 April 2011. Her mother, B.F., went on her

first date with defendant in 2012. Over the course of B.F.’s relationship with

defendant, L.F. had very little contact with defendant and was in his presence only

twice: once on B.F.’s first date with defendant, and once on the occasion of the offense.

      B.F. brought L.F., who was an infant at the time, along on her first date with

defendant. At the end of the date, B.F. performed oral sex on defendant in the car

while L.F. was asleep in a rear-facing car seat in the backseat.

      The only other time L.F. and defendant were together was on the occasion of

the offense. One night in the fall of 2014, B.F. brought three-year-old L.F. to

defendant’s parents’ house. Defendant’s parents had a treehouse with a bed and a




      1   Initials are used throughout this opinion to protect the identity of the juvenile.


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                                   Opinion of the Court



television inside. B.F., L.F., and defendant sat on the bed in the treehouse and

watched a children’s television show. Defendant texted B.F. and told her to take off

L.F.’s clothes and her own, and she complied. Defendant then removed all of his own

clothes, except his boxers. Defendant asked B.F. to touch L.F.’s clitoris, which she

did. Defendant watched and began masturbating. At defendant’s request, B.F. moved

L.F. closer to him. Defendant placed his hand on L.F.’s head to guide her mouth onto

his penis. When L.F. expressed that she wanted to leave, defendant took her and

B.F. home.

      In January 2015, L.F. told her stepmother about what happened in the

treehouse. Her stepmother contacted law enforcement and social services.

      At trial, the jury found defendant guilty of all four charges and found that the

State had proven two aggravating factors: (1) that defendant took advantage of a

position of trust or confidence, including a domestic relationship, to commit the

offense, and (2) that the victim was very young. The trial court arrested judgment on

the two convictions of taking indecent liberties with a child.

      At the sentencing hearing, the trial court found four mitigating factors, but

determined that the aggravating factors outweighed the mitigating factors, and gave

defendant an aggravated sentence. The trial court sentenced defendant to 300 to 420

months imprisonment for each charge, to run consecutively, for a total term of 600 to

840 months.



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                                   STATE V. HELMS

                                   Opinion of the Court



      Defendant appealed to the Court of Appeals arguing there was insufficient

evidence to support the submission of the second aggravating factor—that defendant

“took advantage of a position of trust or confidence, including a domestic relationship,

to commit the offense[s,]”—to the jury. § 15A-1340.16(d)(15). In an unpublished

opinion, State v. Helms, No. COA18-12, 2018 WL 4701732 (N.C. Ct. App. Oct. 2, 2018),

the Court of Appeals determined that evidence did support the aggravating factor, in

that defendant used his relationship with B.F. to create a relationship with L.F. and

to bring L.F. to his parents’ home in order to commit the offense. The Court of Appeals

therefore determined that there was “a permissible inference that because of L.F.’s

extreme reliance on her mother, L.F. would trust and rely on her mother’s boyfriend

of more than two years, even though L.F. only interacted with defendant in person

on two occasions.” Id., slip op. at 7–8, 2018 WL 4701732, at *3. As a result, the Court

of Appeals concluded that the trial court did not err when it submitted the trust or

confidence aggravating factor to the jury. Id., slip op. at 9, 2018 WL 4701732, at *4.

      Writing separately, the dissenting judge disagreed with the majority that there

was sufficient evidence to submit the aggravating factor to the jury. Helms, slip op.

at 1, 2018 WL 4701732, at *5 (Hunter, J., dissenting). He would have held that,

although the State showed evidence of a relationship of trust or confidence between

L.F. and B.F., it failed to present evidence of a relationship of trust or confidence

between L.F. and defendant, and that imputing the closeness of defendant’s

relationship with B.F. to defendant’s relationship with L.F. was “tenuous[.]” Id., slip

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                                    STATE V. HELMS

                                   Opinion of the Court



op. at 1, 2018 WL 4701732, at *4 (Hunter, J., dissenting).

      Defendant filed his appeal of right based on the dissenting opinion.

                                           Analysis

       “The State bears the burden of proving beyond a reasonable doubt that an

aggravating factor exists . . . .” N.C.G.S. § 15A-1340.16(a). A court may impose an

aggravated sentence during the sentencing phase of a trial if a jury finds that a

“defendant took advantage of a position of trust or confidence, including a domestic

relationship, to commit the offense.” § 15A-1340.16(d)(15). A finding of this

aggravating factor depends on “the existence of a relationship between the defendant

and victim generally conducive to reliance of one upon the other.” State v. Daniel, 319

N.C. 308, 311, 354 S.E.2d 216, 218 (1987).

      We have upheld a finding of the “trust or confidence” factor in very limited

factual circumstances. See State v. Mann, 355 N.C. 294, 319, 560 S.E.2d 776, 791

(2002) (citations omitted). Specifically, we have upheld this aggravating factor where

the relationship has been between the defendant and the victim. See, e.g., State v.

Farlow, 336 N.C. 534, 542, 444 S.E.2d 913, 918 (1994) (“The existence of this

aggravating factor is premised on a relationship of trust between defendant and the

victim which causes the victim to rely upon defendant.”); The Court of Appeals has

also applied this interpretation of the statute. See, e.g., State v. Stanley, 74 N.C. App.

178, 327 S.E.2d 902 (factor properly found where victim trusted and obeyed defendant


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                                  Opinion of the Court



as an authority figure), disc. rev. denied, 314 N.C. 546, 335 S.E.2d 318 (1985); State

v. Baucom, 66 N.C. App. 298, 311 S.E.2d 73 (1984) (factor properly found where victim

was ten-year-old brother of defendant); State v. Potts, 65 N.C. App. 101, 308 S.E.2d

754 (1983) (factor properly found where victim thought of defendant as a brother),

disc. rev. denied, 311 N.C. 406, 319 S.E.2d 278 (1984).

      Here, we conclude that the State’s evidence at trial was insufficient to establish

the trust or confidence aggravating factor because it failed to show that the

relationship between L.F. and defendant was conducive to her reliance on him.

Rather, the State’s evidence showed only that L.F. trusted defendant in the same way

she might trust any adult acquaintance, a fact which our courts have found to be

insufficient to support this aggravating factor. See State v. Blakeman, 202 N.C. App.

259, 271, 688 S.E.2d 525, 532 (2010) (finding evidence that the victim trusted the

defendant in the same way she would trust any adult parent of a friend insufficient

to support the aggravating factor).

      L.F. was never in defendant’s care, nor did she ever spend the night in the

same location as defendant. Indeed, she was not alone with him even when the offense

occurred. Her only contact with defendant was as an infant on her mother’s first date

with defendant and as a three-year-old accompanying her mother to defendant’s

parents’ house on the occasion of the offense. The State’s evidence showed nothing

more that could lead to the inference that L.F. had a relationship with defendant in

which she trusted or relied on him at all.

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                                   Opinion of the Court



      The State contends that it is not the relationship between defendant and L.F.

that is relevant here; rather, it is L.F.’s relationship with B.F. Employing an “acting

in concert” theory, the State argues that defendant took advantage of L.F.’s

relationship of trust or confidence with her mother to carry out the offense. The State

suggests the jury relied on this theory because counsel for both defendant and the

State focused on defendant’s relationship with B.F. in closing arguments. However,

defense counsel did not specifically argue the “acting in concert” theory before closing,

and the jury was not instructed on the theory. Due process requires the sufficiency of

the evidence be reviewed with respect to the theory upon which the jury was

instructed. State v. Wilson, 345 N.C. 119, 123, 478 S.E.2d 507, 510 (1996) (citing

Presnell v. Georgia, 439 U.S. 14, 16 (1978)). We decline now to justify the jury’s

decision based on a theory that was never presented to it.

      Without the “acting in concert” theory, the evidence here falls short of showing

a relationship between defendant and L.F. whereby he took advantage of a

relationship of trust or confidence to carry out the offense. Therefore, we reverse the

decision of the Court of Appeals and remand to that court for further remand to the

trial court to resentence defendant without consideration of the section 15A-

1340.16(d)(15) aggravating factor.

      REVERSED AND REMANDED.




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      Justice NEWBY dissenting.

      The issue in this case is whether there was sufficient evidence to ask the jury

to decide whether defendant abused a position of trust or confidence to commit the

sexual assault. To resolve that issue, we must first answer a question of pure

statutory interpretation: does the trust or confidence provision require that

defendant unilaterally built a relationship with the victim toddler? It does not; I

respectfully dissent.

      Under section 15A-1340.16(d)(15), a jury may find that a defendant committed

an aggravated offense if to commit the offense “[t]he defendant took advantage of a

position of trust or confidence, including a domestic relationship.” N.C.G.S.

§ 15A-1340.16(d)(15) (2017). The majority rewrites the statute to also require that

the relationship of trust or confidence specifically exist between the defendant and

the victim. The General Assembly could have easily placed that requirement in the

statute if that is what it intended, but it did not. The statute should be read as

written. The express language requires only that a relationship of trust or confidence

existed and that the defendant took advantage of it to commit the underlying crime.

It does not say anything about necessary parties to the relationship.

      Here the child victim had a relationship of trust and confidence with her

mother. Defendant also had a relationship of trust or confidence with the victim’s

mother: for a couple years they spoke often through Facebook Messenger, made plans
                                  STATE V. HELMS

                                 Newby, J., dissenting

for the future, and even called each other “husband” and “wife.”

      Defendant actively leveraged both relationships to sexually assault the child.

Over the span of the relationship, defendant cultivated the child’s mother so she

would comply with his wishes. He took advantage of her diminished mental capacity,

breaching barriers a mother might otherwise put up to protect her child. Defendant

encouraged the mother to sexually stimulate the child. Several times he spoke to the

mother of his plans to commit sexual acts with their future offspring, and he asked

for photos of the child. In time, he used the mother’s trust to bring both mother and

child to his parents’ private treehouse where he completed his plan.

      If not for the relationships of trust or confidence, the mother would not have

allowed defendant access to her child. If not for the relationships, the mother and

child would never have gone to the treehouse with defendant. And if not for the

relationships, defendant would not have secured the mother’s assistance to commit

the sexual assault for which he was convicted.

      The trial court’s instruction to the jury was also proper. It was quite literally

“by the book.” The court asked the jury to answer “yes” or “no” to the following

question: “Do you find the evidence beyond a reasonable doubt [that] . . . [t]he

defendant took advantage of a position of trust or confidence, including a domestic

relationship, to commit the offense[?]” This question exactly matches the statutory

provision for this aggravating factor, as well as the model jury instruction. See

N.C.P.I. Crim. 204.25(18) (June 2018). Not surprisingly, defendant did not contest


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                                  Newby, J., dissenting

this instruction.

      The jury was able to simply answer “yes.” It did not read in extra requirements

for the aggravating factor like the majority does. A relationship of trust or confidence

existed. But for that relationship, the sexual assault would not have happened. And

defendant actively manipulated that relationship for that very purpose.

      The majority quotes our decision in State v. Daniel, 319 N.C. 308, 354 S.E.2d

216 (1987), to support its holding that there can be no relationship of trust or

confidence unless the victim and the defendant have interacted substantially before

the offense. In that case, we said that finding this aggravating factor “depends . . .

upon the existence of a relationship between the defendant and victim generally

conducive to reliance of one upon the other.” Id. at 311, 354 S.E.2d at 218. For the

majority, no such relationship was formed because the record shows only two

occasions when the victim and defendant interacted.

      The majority misapplies Daniel. The quote relied on by the majority only

served to distinguish between this aggravating factor and another, the victim’s youth.

That same paragraph explains this purpose. The defendant in that case argued that

the youth factor and the relationship of trust or confidence factor could not both be

applied because they were based on the same evidence. In response, we explained:

      . . . the aggravating factor that the defendant took advantage of a
      position of trust or confidence was grounded not in the youth of her child
      but more fundamentally in the child’s dependence upon her. A finding
      of this aggravating factor depends no more on the youth of the victim
      than it does on the notion that confidence or trust in the defendant must
      repose consciously in the victim. Such a finding depends instead on the

                                          -3-
                                   STATE V. HELMS

                                  Newby, J., dissenting

      existence of a relationship between defendant and victim generally
      conducive to reliance of one upon the other.

Id. So, the quote on which the majority builds its opinion does not give a complete

picture of this aggravating factor. It is merely an explanation of why that factor,

under the facts in that case, did not rest on the exact same evidence as the “victim’s

youth” factor. Daniel dealt with the relationship of a defendant mother and victim

child, obviously one of trust or confidence. The issue was not whether there was

evidence of such a relationship, but only whether that factor was truly different than

the youth factor. Daniel simply does not speak to situations like this one, where the

question is whether a relationship of trust or confidence existed between the right

parties.

      The majority cites one other case from this Court to bolster its new

requirement that the relationship of trust or confidence exist between the defendant

and the victim, but that case also fails to support its holding. In State v. Farlow, 336

N.C. 534, 542, 444 S.E.2d 913, 918 (1994), we cited Daniel saying “[t]he existence of

this aggravating factor is premised on a relationship of trust between defendant and

the victim which causes the victim to rely upon the defendant.” But again, the

majority ignores the specific facts of the case. In Farlow, there was no other

significant relationship besides the one between the defendant and the victim. The

victim’s father was deceased, his mother was away, and his caretaker grandfather

was deceased. Id. The defendant built a relationship with the victim solely and

directly because it could not have been any other way. This Court has not addressed

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                                   STATE V. HELMS

                                  Newby, J., dissenting

a case with facts like this one, where the relationship of trust or confidence that

brought about the sexual assault was not between the defendant and the victim

directly.

       The majority also argues this aggravating factor could be attributed to

defendant only under an “acting in concert” theory, and so must have been instructed

to the jury under that theory. That is incorrect. “Acting in concert” is not an abstract

legal theory, but a common sense principle that places responsibility on defendants

who would not otherwise directly satisfy the statutory provision, when they scheme

with someone who does. It supplements aggravating factors that by their terms could

only be completed directly and individually.

       But an “acting in concert” theory need not be explicitly instructed when the

statute providing the aggravating factor is broad enough to apply without it. State v.

Benbow, 309 N.C. 538, 308 S.E.2d 647 (1983), provides an example. There the

defendant committed second-degree murder and armed robbery. His sentence was

aggravated because, among other things, the death of the robbery victim was

“especially heinous, atrocious, or cruel.” See N.C.G.S. § 15A-1340.16(d)(7) (2017)

(allowing for an aggravated sentence when “[t]he offense was especially heinous,

atrocious, or cruel”). The Court upheld the finding of that factor, even though the

defendant himself did not directly participate in killing the victim, but instead was a

lookout. Benbow, 309 N.C. at 544–46, 308 S.E.2d at 651–52. The Court did not discuss

an acting in concert theory at all. Only two questions applied: (1) did the defendant


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                                   STATE V. HELMS

                                  Newby, J., dissenting

commit the underlying offense? and (2) was the offense especially heinous, atrocious,

or cruel? The answer to both was yes, so no “acting in concert” theory was necessary.

See generally id. at 544–45, 308 S.E.2d at 651.

      Because section 15A-1340.16(d)(15) does not by its terms require a specific type

of relationship between the child victim and defendant, only two questions apply: (1)

did defendant commit the underlying offense? and (2) did he take advantage of a

relationship of trust or confidence to do so? The answer to both is yes.

      I respectfully dissent.




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