IN THE SUPREME COURT OF NORTH CAROLINA

No. 94PA16

Filed 8 December 2017

STATE OF NORTH CAROLINA

v.

HAROLD LAMONT FLETCHER

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

unpublished decision of the Court of Appeals, ___ N.C. App. ___, 782 S.E.2d 926

(2016), finding no error at trial after appeal from judgments entered on 23 May 2014 

by Judge Phyllis M. Gorham in Superior Court, New Hanover County. Heard in the 

Supreme Court on 13 February 2017.

Joshua H. Stein, Attorney General, by Laura E. Crumpler, Special Deputy 

Attorney General, for the State.

Glenn Gerding, Appellate Defender, by James R. Grant, Assistant Appellate 

Defender, for defendant-appellant.

ERVIN, Justice.

The issues before us in this case include whether the trial court abused its 

discretion by overruling defendant’s objection to alleged misstatements of law 

contained in the prosecutor’s final argument to the jury and whether the trial court 

erroneously denied defendant’s request that the jury be instructed that the “oral 

intercourse” element of first-degree sexual exploitation of a minor involves 

“penetration, however slight.” We hold that the challenged prosecutorial argument, 
STATE V. FLETCHER

Opinion of the Court

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while erroneous, was not prejudicial and that the trial court did not err by refusing 

to deliver defendant’s requested “oral intercourse” instruction. As a result, we modify 

and affirm the Court of Appeals’ decision.

On 26 May 2002, defendant Harold Lamont Fletcher married “Theresa,” who 

had two young children from a previous marriage, including “Diane.”1 Diane referred 

to defendant, who had become involved in Diane’s life when she was one year old, as 

“Dad.” Theresa had known since the beginning of the couple’s marriage that 

defendant had a pornography-related addiction and eventually insisted that 

defendant receive counseling for this problem. As a result, both defendant and 

Theresa underwent counseling that was intended to address defendant’s

pornography-related addiction.

During her third or fourth grade year, Diane noticed that defendant had begun 

to enter her bedroom after she had gone to bed. On one occasion, Diane found

defendant standing over her with his hand on her chest. On another occasion, 

defendant told Diane that “he was picking a piece of cotton or lint out of [her] mouth 

from [her] blanket” when she confronted him about being in her room at night. In 

early March 2012, when she was fifteen years old, Diane saw a red light outside of 

her bedroom window. A few weeks later, on 12 March 2012, Diane saw a camera 

 

1 “Theresa” and “Diane” are pseudonyms used for ease of reading and to protect the 

identity of the persons involved.
STATE V. FLETCHER

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outside the same window as she dressed. Defendant was outside the family home on 

both occasions.

In early December 2012, after Diane told Theresa that she believed that 

defendant was entering her bedroom and “touching her chest,” Theresa took Diane to 

speak with the counselor who had assisted defendant and Theresa with defendant’s 

addiction to pornography, given that the “counselor was aware of [defendant’s]

habits.” After consulting with the counselor, Theresa contacted the New Hanover 

County Department of Social Services.

Subsequently, the State Bureau of Investigation initiated an investigation into 

defendant’s activities. During a search of the family home, investigating officers 

seized multiple videos and photographs of Diane from files stored on defendant’s 

computer, including several images depicting Diane in various states of undress and 

four images depicting a hand holding a penis against or near Diane’s mouth while 

she slept. According to Theresa, the hand and the penis depicted in the second set of 

images belonged to defendant.

Although defendant admitted that he had recorded images of Diane “in the 

bathroom getting ready to take a shower, dressing, undressing,” and “asleep in her 

bed” for purposes of “sexual gratification,” he denied having ever touched her in an 

inappropriate manner. At trial, defendant admitted to having committed secret

peeping and having taken indecent liberties with a child. However, defendant denied 

his guilt of statutory sex offense and first-degree sexual exploitation of a minor on the 
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grounds that the images depicting his penis near Diane’s mouth did not show actual 

conduct and had, instead, been digitally manipulated to produce that appearance. 

Although Lars Daniel, an expert in digital imaging manipulation, testified that 

defendant “display[ed] an advanced level of ability [with] Photoshop” and that it was 

“highly likely” that at least one of the images depicting a penis near Diane’s mouth 

had been digitally manipulated, he could not formulate an opinion concerning the 

extent, if any, to which any of the other images depicting defendant’s penis against 

or near Diane mouth had been digitally altered.

On 18 March 2013, the New Hanover County grand jury returned bills of 

indictment charging defendant with one count of first-degree sexual exploitation of a 

minor; statutory sex offense with a fifteen year-old; eighteen counts of secret peeping;

and six counts of taking indecent liberties with a child, with these offenses allegedly 

having occurred between 24 December 2009 and 3 December 2012. The charges 

against defendant came on for trial before the trial court and a jury at the 19 May 

2014 criminal session of the Superior Court, New Hanover County.

During the jury instruction conference, the trial court rejected defendant’s 

request that the trial court instruct the jury that the “oral intercourse” necessary for

a finding of guilt of first-degree sexual exploitation of a minor “requires something 

more than a mere touching” and could require proof of “penetration, however slight.” 

After the State asserted that proof of penetration was not required to establish “oral 

intercourse” and that “oral intercourse” and “fellatio” were interchangeable terms,
STATE V. FLETCHER

Opinion of the Court

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the trial court refused to instruct the jury in accordance with defendant’s request and 

permitted the parties to advance their competing definitions of “oral intercourse”

before the jury during their closing arguments.

Once defendant had asserted in his closing argument that the images depicting 

his penis on or near Diane’s mouth had been digitally altered and that these images, 

even in their unaltered state, did not depict his penis in physical contact with Diane’s 

mouth, the trial court allowed the prosecutor to argue, over defendant’s objection, 

that:

The other charge is sexual exploitation of a minor. 

That’s a very fancy way for saying manufacturing or 

producing child pornography. You have to know the 

content of the material, using a minor for the purposes of 

producing material that contains a visual representation 

depicting sexual activity. Does not matter if the image was 

altered. If I take a picture of a child from the newspaper 

at a tennis match and I go back to my house and I take a 

picture of myself unclothed and I am able to manipulate 

those photos to show that I am engaged in a sexual act with 

that child, that’s manufacturing child pornography. The 

child does never have to actually be involved in the sexual 

act itself.

Although the trial court did instruct the jury that, in order to find defendant guilty 

of first-degree sexual exploitation of a minor, it had to find beyond a reasonable doubt 

that “defendant used, induced, coerced, encouraged or facilitated a [minor] to engage 

in [oral intercourse] for the purpose of producing material that contains a visual 

representation depicting this activity,” the trial court never defined “oral intercourse”

during its final instructions to the jury.
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On 22 May 2014, the jury returned verdicts finding defendant guilty of firstdegree sexual exploitation of a minor, attempted statutory sex offense, eighteen 

counts of secret peeping, and six counts of taking indecent liberties with a child. On 

23 May 2014, the trial court arrested judgment with respect to each of the secret 

peeping charges; entered judgments sentencing defendant to consecutive terms of 16 

to 20 months imprisonment based upon each of defendant’s convictions for taking 

indecent liberties with a child, to a consecutive term of 73 to 97 months based upon 

defendant’s conviction for first-degree sexual exploitation of a minor, and to a 

consecutive term of 157 to 198 months imprisonment based upon defendant’s 

conviction for attempted statutory sex offense; and ordered that defendant register 

as a sex offender following his release from imprisonment. Defendant noted an 

appeal to the Court of Appeals from the trial court’s judgments.

In seeking relief from the trial court’s judgments before the Court of Appeals, 

defendant argued that the trial court had erred by allowing the prosecutor “to 

misstate the law to the jury regarding an essential element of sexual exploitation” of 

a minor and by failing to instruct the jury that guilt of first-degree sexual exploitation 

of a minor required proof of “penetration, however slight.” In rejecting defendant’s 

challenge to the prosecutor’s closing argument, the Court of Appeals determined that 

“the prosecutor’s remarks [constituted] reasonable inferences of the law” given that

first-degree sexual exploitation “include[s] digitally manipulated photos that had 

been produced without a minor being actually engaged in sexual activity, provided 
STATE V. FLETCHER

Opinion of the Court

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that the image depicted an actual minor engaged in sexual activity.” State v. Fletcher, 

-- N.C. --, 782 S.E.2d 926, 2016 WL 797895 (2016) (unpublished), at *5. The Court of 

Appeals further noted that, “to the extent that the prosecutor’s argument could be 

construed as a misstatement of law, it was remedied by the trial court’s multiple 

reiterations that it will instruct on the law and its instructing was in accordance with 

the pattern jury instructions.” Id. at *6.

Secondly, the Court of Appeals rejected defendant’s contention that “ ‘oral 

intercourse’ requires some evidence that that defendant’s male sex organ penetrated 

Diane’s mouth.” Id. at *9. After acknowledging long-standing precedent to the effect

that both vaginal intercourse and anal intercourse require penetration, the Court of 

Appeals stated that, “[g]iven the ambiguity of the phrase and these indicators of 

meaning,” it would decline “to impose the requirement that, when the State proceeds 

under ‘oral intercourse,’ it must prove that the victim’s mouth was penetrated.” Id. 

at *10. As a result, the Court of Appeals found no error in the proceedings leading to 

the entry of the trial court’s judgments.

In seeking further review of the Court of Appeals’ decision by this Court, 

defendant argued that “the prosecutor misstated the law during his closing argument 

when he told the jury that it could convict [defendant] of first degree exploitation even 

if it determined that the images were fabricated or manipulated” and that the trial 

court’s decision to overrule his objection to the prosecutor’s argument “endorsed the 

prosecutor’s misstatement in the presence of the jury.” In addition, defendant argued 
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Opinion of the Court

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that the Court of Appeals’ decision to the effect that “ ‘oral intercourse’ as 

contemplated by N.C.G.S. § 14-190.16 does not require penetration” “conflict[s] with 

this Court’s well-established precedent regarding the definition of sexual 

‘intercourse.’ ” The State, on the other hand, urged us to refrain from granting further 

review in this case on the grounds that the Court of Appeals had correctly determined 

that the challenged prosecutorial argument rested upon “ ‘reasonable inferences’

derived from the sexual exploitation statute”; that, “even assuming some impropriety, 

the trial court’s instruction to the jury cured any such improper argument”; and that 

the Court of Appeals had “relied upon several well established principles of statutory 

construction” in determining that “oral intercourse” as that term is used in N.C.G.S. 

§ 14-190.13(5)(b) did not involve penetration. We granted defendant’s petition for 

discretionary review of the Court of Appeals’ decision on 9 June 2016.

In seeking to persuade us that the trial court erred by overruling his objection 

to the prosecutor’s argument that the images utilized to support the first-degree 

sexual exploitation of a minor charge did not need to depict actual sexual activity,

defendant contends that the relevant statutory provision requires “that a minor 

actually be exposed to sexual activity” on the grounds that the presence or absence of 

such activity “is one distinction separating first-degree sexual exploitation from the 

two lesser degrees of sexual exploitation,” citing N.C.G.S. §§ 14-190.17 and 14-

190.17A. The trial court’s failure to sustain defendant’s objection to the challenged 

prosecutorial argument clearly prejudiced defendant given that his “primary defense” 
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Opinion of the Court

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“was that the images of Diane sleeping” had been “digitally manipulated through the 

use of computer software” and, “at worst, simulated sexual activity.” In defendant’s 

view, the trial court’s jury instructions did not suffice to cure the prejudice arising 

from the prosecutor’s argument given that “the pattern instruction employed by the 

trial court merely tracked the language of the statute, and . . . did not explicitly 

address the prosecutor’s misstatement.” Finally, defendant asserted that “the jury’s 

logically inconsistent verdicts of attempted statutory sex offense and completed firstdegree sexual exploitation” highlighted the prejudicial effect of the trial court’s error.

Secondly, defendant contends that the trial court’s failure to instruct the jury 

that “oral intercourse” required proof of “penetration, however slight,” constituted 

prejudicial error. After noting that a “trial court is required to give [a requested] 

instruction, at least in substance, if it is a correct statement of the law and supported 

by the evidence,” citing State v. Shaw, 322 N.C. 797, 804, 370 S.E.2d 546, 550 (1988),

defendant contends that, because “this Court has consistently held that the phrases 

‘vaginal intercourse’ and ‘anal intercourse’ both entail penetration, however slight,”

the statutory reference to “oral intercourse” should be understood to require 

“penetration” as well given that “it is conclusively presumed that the intention of the 

Legislature must be taken to be in the import of the words previously judicially 

construed,” quoting Jones v. Commissioners, 137 N.C. 579, 608, 50 S.E. 291, 301 

(1905).
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Opinion of the Court

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The State, on the other hand, contends that the Court of Appeals correctly 

determined that the challenged portion of the prosecutor’s argument, rather than 

misstating the law, reflected a “reasonable inference” “derived from the exploitation 

statute.” Moreover, even if the trial court erred by failing to sustain defendant’s 

challenge to the relevant portion of the prosecutor’s argument, “[d]efendant cannot 

demonstrate prejudicial error” given the overwhelming evidence of defendant’s guilt

and the fact that the trial court correctly instructed the jury concerning the issue of 

defendant’s guilt of first-degree sexual exploitation of a minor, with any inconsistency 

between the jury’s verdicts concerning the issue of defendant’s guilt of statutory sex 

offense and first-degree sexual exploitation of a minor failing to establish prejudice 

“stemming from the prosecutor’s brief statement concerning manipulated images,” 

citing State v. Davis, 214 N.C. 787, 794, 1 S.E.2d 104, 108 (1939) (holding that, if the 

record contains sufficient evidence to support a verdict, “mere inconsistency will not 

invalidate the verdict”).

In addition, the State asserts that the trial court’s jury instructions

“adequately addressed each essential element” of the offense of first-degree sexual 

exploitation of a minor, so that “the trial judge was not required to read [d]efendant’s 

requested jury instruction.” According to the State, defendant’s requested instruction 

concerning the definition of “oral intercourse” “would narrow the scope of the statute 

and . . . [allow] an adult [to] escape prosecution even if he actively filmed or produced 

a picture of his penis touching the lips, tongue or mouth of a minor” despite the 
STATE V. FLETCHER

Opinion of the Court

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General Assembly’s clear intention to protect minors “from the physiological and 

psychological injuries resulting from sexual exploitation and abuse,” quoting State v. 

Williams, 232 N.C. App. 152, 159, 754 S.E.2d 418, 423-24, appeal dismissed and disc. 

rev. denied, 367 N.C. 784, 766 S.E.2d 846 (2014). As a result, the State urges us to 

affirm the Court of Appeals’ decision.

As a general proposition, parties are given “wide latitude” in their closing 

arguments to the jury, State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131 (1975) 

(citations omitted), with the State being entitled to “argue to the jury the law, the 

facts in evidence and all reasonable inferences drawn therefrom,” State v. Goss, 361 

N.C. 610, 626, 651 S.E.2d 867, 877 (2007) (quoting State v. Alston, 341 N.C. 198, 239, 

461 S.E.2d 687, 709-10 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 

2d 100 (1996)), cert. denied, 555 U.S. 835, 129 S. Ct. 59, 172 L. Ed. 2d 58 (2008). 

However, “[i]ncorrect statements of law in closing arguments are improper, and upon 

[a] defendant’s objection, the trial judge should . . . sustain [the] objection and 

instruct the jury to disregard the statement.” State v. Ratliff, 341 N.C. 610, 616-17, 

461 S.E.2d 325, 328-29 (1995) (citation omitted).2 A challenge to the trial court’s 

 

2 Although the State contends that defendant’s general objection did not suffice to 

preserve his challenge to the trial court’s failure to sustain his objection to the challenged 

portion of the prosecutor’s argument for purposes of appellate review, no statement of the 

basis for an objection is required unless the ground for the objection is “not apparent from 

the context.” N.C. R. App. P. 10(a)(1). When the relevant portions of the State’s final 

argument are considered in the context of the basic thrust of defendant’s defense, the basis 

for defendant’s objection is obvious. As a result, we conclude that defendant’s challenge to 

the trial court’s refusal to sustain defendant’s objection to a portion of the prosecutor’s final 

argument is properly preserved for purposes of appellate review.
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failure to sustain a defendant’s objection to a comment made during the State’s 

closing argument is reviewed for an abuse of discretion, State v. Walters, 357 N.C. 68, 

101, 588 S.E.2d 344, 364 (citing State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 

(2002)), cert. denied, 540 U.S. 971, 124 S. Ct. 442, 157 L. Ed. 2d 320 (2003), with the 

reviewing court being required to “first determine if the remarks were improper” and 

then “determine if the remarks were of such a magnitude that their inclusion 

prejudiced [the] defendant.” Id. at 101, 588 S.E.2d at 364 (citing and quoting Jones, 

355 N.C. at 131, 558 S.E.2d at 106). Assuming that the trial court’s refusal to sustain 

the defendant’s objection was erroneous, the defendant must show that there is a 

reasonable possibility that the jury would have acquitted him had the challenged 

argument not been permitted. Ratliff, 341 N.C. at 617, 461 S.E.2d at 329 (citing, 

inter alia, N.C.G.S. § 15A-1443(a) (1988), which is identical to the current statute).

The statutory framework governing criminal liability arising from the creation 

and distribution of child pornography was initially enacted by the General Assembly

in 1985. Cinema I Video, Inc. v. Thornburg, 320 N.C. 485, 489, 358 S.E.2d 383, 384 

(1987). Under the current statutory scheme, a defendant can be convicted of sexual 

exploitation of a minor in the event that he commits a variety of acts, with the 

defendant’s conduct being subject to varying degrees of punishment depending upon 

the nature and extent of the defendant’s involvement with the minor in question. See 

N.C.G.S. §§ 14-190.16, -190.17 (2015); see also id. § 14-190.17A (2015) (enacted in 

1989). For example, the offense of third-degree sexual exploitation of a minor 
STATE V. FLETCHER

Opinion of the Court

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prohibits the mere possession of child pornography. See id. § 14-190.17A(a) (stating 

that “[a] person commits the offense of third degree sexual exploitation of a minor if, 

knowing the character or content of the material, he possesses material that contains 

a visual representation of a minor engaging in sexual activity”). On the other hand, 

a defendant commits the offense of second-degree sexual exploitation of a minor if he 

or she “[r]ecords, photographs, films, develops, or duplicates material that contains a 

visual representation of a minor engaged in sexual activity; or . . . [d]istributes, 

transports, exhibits, receives, sells, purchases, exchanges, or solicits material that 

contains a visual representation of a minor engaged in sexual activity,” id. § 14-

190.17(a)(1)-(2), with the common thread running through the conduct statutorily 

defined as second-degree sexual offense being that the defendant had taken an active 

role in the production or distribution of child pornography without directly 

facilitating the involvement of the child victim in the activities depicted in the 

material in question. Finally, the offense of first-degree sexual exploitation of a minor 

is committed if the defendant, “knowing the character or content of the material or 

performance”:

(1) Uses, employs, induces, coerces, encourages, or 

facilitates a minor to engage in or assist others to engage 

in sexual activity for a live performance or for the purpose 

of producing material that contains a visual representation 

depicting this activity; or

(2) Permits a minor under his custody or control to 

engage in sexual activity for a live performance or for the 
STATE V. FLETCHER

Opinion of the Court

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purpose of producing material that contains a visual 

representation depicting this activity; or

(3) Transports or finances the transportation of a minor 

through or across this State with the intent that the minor 

engage in sexual activity for a live performance or for the 

purpose of producing material that contains a visual 

representation depicting this activity; or

(4) Records, photographs, films, develops, or duplicates 

for sale or pecuniary gain material that contains a visual 

representation depicting a minor engaged in sexual 

activity.

Id. § 14-190.16(a).

3 As a result, the acts necessary to establish the defendant’s guilt 

of first-degree sexual exploitation of a minor can be categorized as involving either 

direct facilitation of the minor’s involvement in sexual activity or the production of 

child pornography for sale or profit. See id.

The indictment returned against defendant for the purpose of charging him 

with first-degree sexual exploitation of a minor alleged that defendant “use[d] or

induce[d] or coerce[d] or encourage[d] or facilitate[d] [Diane] to engage in sexual 

activity, oral intercourse, for the purpose of producing material containing a visual 

representation depicting this activity” while “knowing the character of the material.” 

As a result, the record clearly establishes that the State sought to prosecute 

defendant for committing the offense delineated in N.C.G.S. § 14-190.16(a)(1). 

 

3 The definition of “sexual activity” as set out in N.C.G.S. § 14-190.13(5) (2015) is 

discussed in more detail below. The “act” of being photographed while sleeping does not, 

however, fall within any component of the statutory definition of “sexual activity” contained 

in that statutory provision.
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According to the plain language of the relevant statutory provision, the minor in 

question is required to have engaged in sexual activity. See Williams v. Williams, 

299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980) (stating that, “[w]here the language of 

a statute is clear and unambiguous, there is no room for judicial construction and the 

courts must give it plain and definite meaning”) (citations omitted); see also Cinema 

I Video, Inc., v. Thornburg, 83 N.C. App. 544, 566, 351 S.E.2d 305, 319 (1986) 

(concluding that the statutory provisions prohibiting the sexual exploitation of a 

minor contemplate “live performance or photographic or other visual reproduction of 

live performances”) (quoting New York. v. Ferber, 458 U.S. 747, 765, 102 S. Ct. 3348, 

3358, 73 L. Ed. 2d 1113, 1127 (1982)), aff’d, 320 N.C. 485, 358 S.E.2d 383 (1987). 

Thus, when the minor depicted in an image appears to have been shown as engaged 

in sexual activity as the result of digital manipulation, the defendant has not 

committed the offense of first-degree sexual exploitation of a minor. As a result, both

the prosecutor’s assertion that it “[d]oes not matter if the image [appearing to depict 

sexual activity involving a minor] was altered” and the prosecutor’s statement that, 

“[i]f I take a picture of a child from the newspaper . . . and I take a picture of myself 

unclothed, and I am able to manipulate those photos to show that I am engaged in a 

sexual act with that child, that’s manufacturing child pornography” constitute 

misstatements of the applicable law.

The State’s reliance upon the decision of the United States Supreme Court in

United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008), to 
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Opinion of the Court

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support its defense of the prosecutor’s argument is misplaced. As an initial matter, 

the issue before the Court in Williams was whether a federal statute that 

“criminalizes, in certain specified circumstances, the pandering or solicitation of child 

pornography” was impermissibly “overbroad under the First Amendment [to the 

United States Constitution] or impermissibly vague under the Due Process Clause of 

the Fifth Amendment.” Id. at 288, 128 S. Ct. at 1835, 170 L. Ed. 2d at 659. In other 

words, Williams addressed the issue of whether a legislative body could 

constitutionally criminalize certain conduct rather than whether the General 

Assembly, in enacting N.C.G.S. § 14-190.16(a)(1), actually did criminalize certain 

types of conduct.

4 Secondly, the federal statutory provision at issue in Williams, 

unlike N.C.G.S. § 14-190.16(a)(1), explicitly defined prohibited “sexually explicit 

conduct” as including various acts that could be either “actual or simulated.” Id. at 

290, 128 S. Ct. at 1837, 170 L. Ed. 2d at 661. As a result, even though “[t]he 

emergence of new technology and the repeated retransmission of picture files over 

the Internet could make it nearly impossible to prove that a particular image was 

produced using real children,” id. at 290, 128 S. Ct. at 1837, 170 L. Ed. 2d at 661, the 

United States Supreme Court’s decision in Williams has no bearing upon the proper 

resolution of defendant’s first challenge to the trial court’s judgments.

 

4 We do not, of course, wish the textual discussion to be understood as expressing any 

opinion concerning the extent, if any, to which digitally altering otherwise innocent 

photographs of minors so as to create images that appear to depict the minor engaged in 

sexual activity or the possession of such digitally altered images constitute either seconddegree sexual exploitation of a minor or third-degree sexual exploitation of a minor.
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Opinion of the Court

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Although the trial court erred by failing to sustain defendant’s objection to the 

challenged prosecutorial argument, the commission of such an error, standing alone,

does not suffice to justify a decision to award defendant a new trial, see State v. 

Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208, cert. denied, 510 U.S. 1028, 114 S. 

Ct. 644, 126 L. Ed. 2d 602 (1993), given that a party’s misstatement of the law during 

the course of its final argument is deemed to have been “cured by the court’s correct 

jury instructions on [the issue misstated],” State v. Phillips, 365 N.C. 103, 140, 711 

S.E.2d 122, 148 (2011), cert. denied, 565 U.S. 1204, 132 S. Ct. 1541, 182 L. Ed. 2d 176

(2012); see also State v. Anderson, 322 N.C. 22, 38, 366 S.E.2d 459, 469, cert. denied, 

488 U.S. 975, 109 S. Ct. 513, 102 L. Ed. 2d 548 (1988). As defendant concedes, the

trial court instructed the jury that it could only convict defendant of first-degree 

sexual exploitation of a minor in the event that it found beyond a reasonable doubt 

that “the defendant used, induced, coerced, encouraged or facilitated a person to 

engage in sexual activity for the purpose of producing material that contains a visual 

representation depicting this activity,” with “[o]ral intercourse [constituting] sexual 

activity.” Although this instruction explicitly informed the jury that, in order for it 

to return a guilty verdict, it had to find that defendant “used, induced, coerced, 

encouraged or facilitated” Diane’s involvement in sexual activity, defendant contends 

that a finding that the trial court’s failure to sustain his objection to the prosecutor’s 

misstatement of the law constituted harmless error would be inappropriate given the 

centrality of the issue addressed in the challenged portion of the prosecutor’s 
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Opinion of the Court

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argument to defendant’s defense and the fact that the trial court’s decision to overrule 

his objection to the relevant portion of the prosecutor’s argument placed the 

imprimatur of the trial court’s approval on the challenged argument. However, given 

the clarity of the language used in the trial court’s instruction and the absence of any

North Carolina authority tending to support defendant’s contention, we do not find 

defendant’s contentions with respect to the prejudice issue persuasive.

5

Moreover, the fact that the jury returned what defendant describes as

“inconsistent” verdicts has no tendency to show that it failed to understand and heed

the trial court’s instructions concerning the showing that the State was required to 

make in order for the jury to convict defendant of first-degree sexual exploitation of 

a minor, which clearly required proof beyond a reasonable doubt that defendant used 

Diane to engage in actual sexual activity. Although the jury’s verdicts might have 

some tendency to suggest that the jury had difficulty determining whether

defendant’s penis actually touched Diane’s lips, its verdicts do not in any way tend to 

suggest that the jury accepted the prosecutor’s contention that a conviction for first-

 

5 Although defendant did cite the United States Supreme Court’s decision in Bruton 

v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), in support of the 

prejudice argument discussed in the text, his reliance on Bruton is unavailing given that this 

case involves a prosecutorial misstatement of the law that was corrected in the trial court’s 

jury instructions while Bruton involved the admission of a codefendant’s confession that also 

implicated the defendant subject to an instruction that the jury should only consider the 

information contained in the codefendant’s confession against the codefendant. Unlike the 

evidence at issue in Bruton, the challenged prosecutorial argument cannot reasonably be 

described as “of the most persuasive sort, ineradicable, as a practical matter, from the jury’s 

mind[.]” Kansas v. Carr, 577 U.S. ___, ___, 136 S. Ct. 633, 645, 193 L. Ed. 2d 535, 548 (2016) 

(citations omitted).
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Opinion of the Court

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degree sexual exploitation of a minor can rest upon digitally altered images rather 

than evidence of some sort of actual sexual activity. As a result, we do not believe 

that there is any reasonable possibility that, but for the trial court’s failure to sustain 

defendant’s objection to the prosecutor’s misstatement of the applicable law, the jury 

would have acquitted defendant of first-degree sexual exploitation of a minor. Ratliff, 

341 N.C. at 617, 461 S.E.2d at 329; see also N.C.G.S. § 15A-1443(a) (2015)).

“The jury charge is one of the most critical parts of a criminal trial.” State v. 

Walston, 367 N.C. 721, 730, 766 S.E.2d 312, 318 (2014). “The purpose of . . . a charge 

to the jury is to give a clear instruction to assist the jury in an understanding of the 

case and in reaching a correct verdict,” Shaw, 322 N.C. at 803, 370 S.E.2d at 549, 

including how “the law . . . should be applied to the evidence,” State v. Sutton, 230 

N.C. 244, 247, 52 S.E.2d 921, 923 (1949) (citations omitted). As a result, the trial 

court has a duty “to instruct the jury on all substantial features of a case raised by 

the evidence.” Shaw, 322 N.C. at 803, 370 S.E.2d at 549 (citing State v. Ferrell, 300 

N.C. 157, 163, 265 S.E.2d 210, 214 (1980), disapproved of on other grounds by State 

v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993)). In the event that a 

“defendant’s request for [an] instruction [is] correct in law and supported by the 

evidence in the case, the trial court [is] required to give the instruction, at least in 

substance.” Shaw, 322 N.C. at 804, 370 S.E.2d at 550 (citing State v. Howard, 274 

N.C. 186, 199, 162 S.E.2d 495, 504 (1968)). “[I]n giving jury instructions,” however,

“ ‘the court is not required to follow any particular form,’ as long as the instruction 
STATE V. FLETCHER

Opinion of the Court

-20-

adequately explains ‘each essential element of the offense.’ ” Walston, 367 N.C. at 

731, 766 S.E.2d at 319 (quoting State v. Avery, 315 N.C. 1, 31, 337 S.E.2d 786, 803 

(1985)). Even if a trial court errs by failing to give a requested and legally correct 

instruction, the defendant is not entitled to a new trial unless there is “a reasonable 

possibility that, had the error in question not been committed, a different result 

would have been reached at the trial.” N.C.G.S. § 15A-1443(a); see also Shaw, 322 

N.C. at 804, 370 S.E.2d at 550.

As we have already noted, defendant was charged with “us[ing], employ[ing], 

induc[ing], coerc[ing], encourag[ing], or facilitat[ing] a minor to engage in . . . sexual 

activity . . . for the purpose of producing material that contains a visual 

representation depicting this activity.” N.C.G.S. § 14-190.16(a)(1). “Sexual activity”

for purposes of N.C.G.S. § 14-190.16(a)(1) consists of:

a. Masturbation, whether done alone or with another 

human or an animal.

b. Vaginal, anal, or oral intercourse, whether done with 

another human or with an animal.

c. Touching, in an act of apparent sexual stimulation or 

sexual abuse, of the clothed or unclothed genitals, pubic 

area, or buttocks of another person or the clothed or 

unclothed breasts of a human female.

d. An act or condition that depicts torture, physical 

restraint by being fettered or bound, or flagellation of or 

by a person clad in undergarments or in revealing or 

bizarre costume.
STATE V. FLETCHER

Opinion of the Court

-21-

e. Excretory functions; provided, however, that this subsubdivision shall not apply to [N.C.]G.S. [§] 14-190.17A.

f. The insertion of any part of a person's body, other than 

the male sexual organ, or of any object into another 

person's anus or vagina, except when done as part of a 

recognized medical procedure.

g. The lascivious exhibition of the genitals or pubic area of 

any person.

Id. § 14-190.13(5) (2015). In rejecting defendant’s request that the trial court instruct 

the jury that “oral intercourse” for purposes of N.C.G.S. § 14-190.13(5)(b) involves 

penetration, the trial court stated that, since “the indictment indicates that the 

sexual activity was oral intercourse,” he would “instruct the jury that the sexual 

activity was oral intercourse” without further defining that term and would “allow 

counsel to argue definitions of oral intercourse and fellatio.”

6

The extent to which “oral intercourse,” as that term is used in N.C.G.S. § 14-

190.13(5)(b), requires penetration presents a question of first impression for this 

Court. “When construing legislative provisions, this Court looks first to the plain 

meaning of the words of the statute itself.” State v. Ward, 364 N.C. 157, 160, 694 

 

6 As an aside, we urge the members of the trial bench to refrain from avoiding the 

necessity for instructing the jury concerning all of the essential elements of first-degree 

sexual exploitation of a minor or any other offense by allowing the parties to argue alternative 

definitions of a relevant statutory expression in lieu of defining that expression during the 

trial court’s final instructions. As we have already indicated, “[i]t is the duty of the trial court 

to instruct the jury on all substantial features of a case,” including the definition of statutory 

terms such as “oral intercourse,” to the extent that it is necessary to clarify the nature of the 

decision that the jury is required to make. Shaw, 322 N.C. at 803, 370 S.E.2d at 549.
STATE V. FLETCHER

Opinion of the Court

-22-

S.E.2d 729, 731 (2010). “If the statutory language is clear and unambiguous, the 

court eschews statutory construction in favor of giving the words their plain and 

definite meaning.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005). Aside 

from the fact that neither the General Assembly7 nor the courts8 have defined “oral 

intercourse,” that term lacks an unambiguous “plain and definite meaning” as well. 

Id. at 614, 614 S.E.2d at 277. Although courts often consult dictionaries for the 

purpose of determining the plain meaning of statutory terms, see State v. Ludlum, 

303 N.C. 666, 671, 281 S.E.2d 159, 162 (1981), that approach is of no avail in this case 

given the absence of any definition of “oral intercourse” in reference volumes such as

Webster’s Third New International Dictionary (1971), The American Heritage 

Dictionary of the English Language (4th ed. 2000), and the New Oxford American 

Dictionary (3d ed. 2010), or in online dictionaries, see, e.g., Merriam-Webster, 

 

7 The term “oral intercourse” does appear, without further definition, in N.C.G.S. § 

14-190.1(c)(1), which defines “sexual conduct” in the context of punishing “[o]bscene

literature and exhibitions,” and N.C.G.S. § 15A-615, which permits testing defendants 

charged with committing offenses that “involve[ ]nonconsensual vaginal, anal, or oral 

intercourse” or “vaginal, anal, or oral intercourse” with a victim under the age of sixteen for 

the presence of sexually transmitted diseases. N.C.G.S. §§ 14-190.1(c)(1), 15A-615(a) (2015). 

8 Although the term “oral intercourse” does appear in some of this Court’s opinions,

these references consist of quotations from various statutory provisions or portions of the 

pattern jury instructions or of references to factual information contained in the record. None 

of these references shed any light upon the proper resolution of the question that we are 

called upon to decide in this case. See, e.g., State v. Autry, 321 N.C. 392, 395, 364 S.E.2d 341, 

344 (1988); State v. Locklear, 320 N.C. 754, 756, 360 S.E.2d 682, 683 (1987); State v. Tucker, 

317 N.C. 532, 535, 346 S.E.2d 417, 419 (1986); State v. Ford, 314 N.C. 498, 503, 334 S.E.2d 

765, 769 (1985); State v. Jean, 310 N.C. 157, 159, 311 S.E.2d 266, 267 (1984); State v. Riddle, 

300 N.C. 744, 745, 268 S.E.2d 80, 81 (1980); State v. Self, 280 N.C. 665, 667, 187 S.E.2d 93, 

94 (1972).
STATE V. FLETCHER

Opinion of the Court

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https://www.merriam-webster.com (last visited May 25, 2017).9 As a result, given the 

absence of any generally accepted understanding of the meaning of the statutory 

reference to “oral intercourse,” “judicial construction must be used to ascertain the 

legislative will.” Beck, 359 N.C. at 614, 614 S.E.2d at 277 (quoting Burgess v. Your 

House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136-37 (1990)).

According to well-established North Carolina law, “[t]he intent of the 

Legislature controls the interpretation of a statute.” State v. Joyner, 329 N.C. 211, 

217, 404 S.E.2d 653, 657 (1991) (quoting State v. Perry, 305 N.C. 225, 235, 287 S.E.2d 

810, 816 (1982), overruled by State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d 911, 

916 (2010)). “In ascertaining such intent, a court may consider the purpose of the 

statute and the evils it was designed to remedy, the effect of the proposed 

interpretations of the statute, and the traditionally accepted rules of statutory 

construction.” State v. Tew, 326 N.C. 732, 738-39, 392 S.E.2d 603, 607 (1990) (citation 

omitted); see also State v. Barnett, 369 N.C. 298, 304, 794 S.E.2d 306, 311 (2016) 

(stating that, “[i]n ascertaining the legislative intent, courts should consider the 

language of the statute, the spirit of the statute, and what it seeks to accomplish”

 

9 The dictionaries that have been consulted in the drafting of this opinion do 

consistently define “oral sex” as the oral stimulation of the sex organ of another without 

making any reference to any sort of penetration requirement. See, e.g., New Oxford American 

Dictionary 1233 (3d ed. 2010) (defining “oral sex” as “sexual activity in which the genitals of 

one partner are stimulated by the mouth of the other; fellatio or cunnilingus”); The American 

Heritage Dictionary of the English Language 1236 (4th ed. 2000) (defining “oral sex” as “oral 

stimulation of one’s partner’s sex organs”); Merriam-Webster, https://www.merriamwebster.com/dictionary/oral%20sex (last visited May 25, 2017) (defining “oral sex” as “oral 

stimulation of the genitals: cunnilingus, fellatio”).
STATE V. FLETCHER

Opinion of the Court

-24-

(quoting State ex rel. Utils. Comm’n v. Pub. Staff, 309 N.C. 195, 210, 306 S.E.2d 435, 

444 (1983))). Although the title given to a particular statutory provision is not 

controlling, it does shed some light on the legislative intent underlying the enactment 

of that provision. Brown v. Brown, 353 N.C. 220, 224, 539 S.E.2d 621, 623 (2000) 

(first citing In re Forsyth County, 285 N.C. 64, 71, 203 S.E.2d 51, 55 (1974); and then 

citing Smith Chapel Baptist Church v. City of Durham, 350 N.C. 805, 812, 517 S.E.2d 

874, 879 (1999)). Similarly, “[w]hile a criminal statute must be strictly construed 

against the State, the courts must nevertheless construe it with regard to the evil 

which it is intended to suppress.” Tew, 326 N.C. at 739, 392 S.E.2d at 607 (citation 

omitted). “A construction of a statute which operates to defeat or impair its purpose 

must be avoided if that can reasonably be done without violence to the legislative 

language.” Id. at 739, 392 S.E.2d at 607 (citation omitted).

Statutory provisions criminalizing the making, dissemination, and possession 

of child pornography have been enacted by “virtually all of the States and the United 

States” out of concern “that the use of children as subjects of pornographic materials 

is harmful to the physiological, emotional, and mental health of the child.” New York 

v. Ferber, 458 U.S. at 758, 102 S. Ct. at 3355, 73 L .Ed. 2d at1123. Such laws

are designed to prevent the victimization of individual 

children, and to protect “minors from the physiological and 

psychological injuries resulting from sexual exploitation 

and abuse.” This Court has noted that child pornography 

poses a particular threat to the child victim because “the 

child’s actions are reduced to a recording [and] the 
STATE V. FLETCHER

Opinion of the Court

-25-

pornography may haunt him in future years, long after the 

original misdeed took place.”

State v. Howell, 169 N.C. App. 58, 63, 609 S.E.2d 417, 420-21 (2005) (alteration in 

original) (quoting Cinema I Video, 83 N.C. App. at 5552, 568-69, 351 S.E.2d at 311, 

320)). Thus, as is evidenced by the legislative decision to title the relevant legislation 

as “An Act To Strengthen the Obscenity Laws of this State and the Enforcement of 

These Laws, To Protect Minors from Harmful Material that Does Not Rise to the 

Level of Obscenity, and To Stop the Sexual Exploitation and Prostitution of Minors,” 

see Act of July 11, 1985, ch. 703, 1985 N.C. Sess. Laws 929, we have no hesitation in 

concluding that the General Assembly enacted N.C.G.S. § 14-190.16(a)(1) for the 

purpose of protecting minors from the harms arising from the “use[ ], employ[ment], 

induce[ment], coerc[ion], encourage[ment], or facilitat[ion] [of] a minor to engage in 

or assist others to engage in sexual activity for live performance or for the purpose of 

producing material that contains a visual representation depicting this activity.” 

N.C.G.S. 14-190.16(a)(1). As a result, we believe that the General Assembly intended 

that the relevant statutory language be construed broadly in order to provide minors 

with the maximum reasonably available protection from sexual exploitation.

Adoption of the definition of “oral intercourse” as requiring proof of penetration

as contended for by defendant would contravene this understanding of the relevant 

legislative intent by narrowing the scope of the protections from the sexual 

exploitation of minors afforded by N.C.G.S. § 14-190.16(a)(1). Although this Court 
STATE V. FLETCHER

Opinion of the Court

-26-

has consistently held that other forms of “intercourse” require “penetration, however 

slight,” that definition appears to have been limited in recent years to sexual acts 

that inherently involve penetration of the body of another by the male sex organ. See, 

e.g., State v. Brown, 312 N.C. 237, 244-45, 321 S.E.2d 856, 861 (1984) (defining

vaginal intercourse as the “slightest penetration of the female sex organ by the male 

sex organ”); State v. Atkins, 311 N.C. 272, 275, 316 S.E.2d 306, 308 (1984) (stating 

that anal intercourse “requires penetration of the anal opening . . . by the penis”). 

“When a term has long-standing legal significance, it is presumed that legislators 

intended the same significance to attach by use of that term, absent indications to 

the contrary.” Black v. Littlejohn, 312 N.C. 626, 639, 325 S.E.2d 469, 478 (1985) 

(quoting Sheffield v. Consol. Foods Corp., 302 N.C. 403, 427, 276 S.E.2d 422, 437 

(1981)). For that reason, we conclude that the references to vaginal and anal 

intercourse contained in N.C.G.S. § 14-190.13(5)(b) assume the existence of a 

penetration requirement. On the other hand, we believe that, when read in context,

“oral intercourse” was intended as a gender-neutral reference to cunnilingus and 

fellatio, which are the only components of the definition of “sexual act” as currently 

set out in N.C.G.S. § 14-27.20(4) that are not otherwise explicitly included in the 

definition of “sexual activity” contained in N.C.G.S. § 14-190.13(5).10 As we have 

 

10 Appellate courts in other jurisdictions have reached similar conclusions. For 

example, the South Carolina Court of Appeals held that cunnilingus constituted “sexual 

battery,” statutorily defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or 

any intrusion, however slight, of any part of a person’s body or of any object into the genital 

or anal opening of another person’s body,” despite the absence of penetration. State v. 
STATE V. FLETCHER

Opinion of the Court

-27-

previously recognized, neither fellatio nor cunnilingus, as those terms are currently 

used in N.C.G.S. § 14-27.20(4), require penetration. State v. Goodson, 313 N.C. 318, 

319, 327 S.E.2d 868, 869 (1985) (defining “fellatio” as “oral sex” performed by a female 

upon a male consisting of “contact between the mouth of one party and the sex organs 

of another” without making any mention of penetration); Ludlum, 303 N.C. at 669,

281 S.E.2d at 161 (stating that “[w]e do not agree, however, that penetration is 

required before cunnilingus, as that word is used in the statute, can occur”). In light 

of the obvious legislative intent to provide broad protection against the sexual 

exploitation of minors, the fact that the existence of a penetration requirement with 

respect to “vaginal intercourse” and “anal intercourse” does not logically compel a 

determination that “oral intercourse” includes a penetration requirement as well, the 

inconsistent treatment between the offense of sexual exploitation of a minor and 

 

Morgan, 352 S.C. 359, 365, 574 S.E.2d 203, 206 (S.C. Ct. App. 2002) (emphasis omitted)

(quoting S.C. Code Ann. § 16-3-651(h) (1985)); see also Stephan v. State, 810 P.2d 564, 568 

(Alaska Ct. App. 1991) (stating that cunnilingus constituted “sexual penetration,” defined as 

“genital intercourse, cunnilingus, fellatio, anal intercourse, or an intrusion, however slight, 

of an object or any part of a person’s body into the genital or anal opening of another person’s 

body,” despite the absence of penetration) (quoting Alaska Stat. Ann. § 11.81.900(b)(53)

(1991)); State v. Beaulieu, 674 A.2d 377, 378 (R.I. 1996) (per curiam) (concluding that 

cunnilingus, in the absence of evidence of penetration, establishes a defendant’s guilt of firstdegree sexual assault given that R.I. Gen. Laws 1956 § 11-37-1(8) “does not require actual 

penetration, only sexual penetration”); State v. Marcum, 109 S.W.3d 300, 303 & n.4, 304 

(Tenn. 2003) (holding that a defendant was not entitled to a jury instruction concerning the 

issue of his guilt of attempted rape of child based upon fellatio, without evidence of actual 

penetration, given the statutory definition of “sexual penetration” as “sexual intercourse, 

cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of 

[the] person’s body or of any object into the genital or anal openings of the victim’s, the 

defendant’s, or any other person’s body”) (quoting Tenn. Code Ann. § 39-13-501(7) (1997)).
STATE V. FLETCHER

Opinion of the Court

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sexual offense that would result from the interpolation of a penetration requirement 

into the definition of “oral intercourse,” and the desirability of avoiding “saddl[ing] 

the criminal law with hypertechnical distinctions and the prosecution with overly 

complex and in some cases impossible burdens of proof,” Ludlum, 303 N.C. at 672, 

281 S.E.2d at 162,11 we decline to adopt defendant’s proposed definition of “oral 

intercourse” as containing a penetration requirement and conclude, that since 

defendant’s requested instruction did not constitute an accurate statement of the 

applicable law, see Shaw, 322 N.C. at 804, 370 S.E.2d at 550, the trial court did not 

err by refusing to instruct the jury in accordance with defendant’s request. As a 

result, for the reasons set forth above, the decision of the Court of Appeals, as 

modified in this opinion, is affirmed.

MODIFIED AND AFFIRMED.

 

11 The fact that defendant’s conviction for first degree sexual exploitation of a minor 

rests upon conduct that would also be included within the scope of another subsection of 

definition of “sexual activity” set out N.C.G.S. § 14-190.13(5) does not necessitate the 

inclusion of a penetration requirement into the definition of “oral intercourse” given that 

there is much overlap in the conduct described in the various components of that definition. 

For example, both vaginal and anal intercourse, as this Court has defined those terms, would 

appear to involve “[t]ouching, in an act of apparent sexual stimulation or sexual abuse, of the 

clothed or unclothed genitals, pubic area, or buttocks of another person or the clothed or 

unclothed breasts of a human female.” N.C.G.S. § 14-190.13(5)(c). 
Justice MORGAN concurring in part and concurring in the result only in part.

I concur with the majority decision’s reasoning and holding that the 

prosecutor’s challenged statements—that manipulating innocent images so that they 

appear to show a child engaged in a sexual act is manufacturing child pornography 

and thus constitutes first-degree sexual exploitation of a minor—were erroneous, but 

not prejudicial. 

With regard to the denial of defendant’s request for a jury instruction defining 

“oral intercourse,” I further concur with the majority’s ultimate determination that 

defendant is not entitled to a new trial on that basis. Nonetheless, I reach this result 

only because I believe that defendant cannot establish prejudice, and not on the basis 

that the trial court did not err in refusing to give defendant’s requested definition. 

Proper application of principles of statutory interpretation demonstrates that the 

term “oral intercourse” as used in the sexual exploitation statutes is defined as 

requiring penetration, however slight, of the mouth by the male sex organ. 

Accordingly, the trial court should have so instructed the jury at defendant’s request. 

Before addressing the divergence of my analysis from that of the majority on 

this issue, I first note three key points of agreement with my esteemed colleagues. 

First, the issue of whether, in the context of our State’s sexual exploitation statutes, 

“oral intercourse” requires penetration presents a matter of first impression for this 

Court. Second, because “oral intercourse” is not clearly defined in case law, statutes, 

or general usage dictionaries, we must employ principles of statutory construction to 

determine the meaning of the term. Third, and most critically, I emphatically agree 
STATE V. FLETCHER

Morgan, J., concurring in part and concurring in result only in part.

-30-

with the majority that the General Assembly undoubtedly intended for the sexual 

exploitation statutes to apply to the sex acts that defendant committed against Diane. 

For purposes of sexual exploitation, as well as other public morality and 

decency offenses concerning minors, N.C.G.S. § 14-190.13 (the definitions statute) 

defines “[s]exual activity” to encompass numerous acts, including “[m]asturbation”; 

“[v]aginal, anal, or oral intercourse”; the sexually stimulating or sexually abusive 

touching of the genitals, pubic area, or buttocks of another, or of the female breasts; 

sexualized torture, bondage, and sadomasochistic behaviors; “[e]xcretory functions”; 

penetration of the vagina or anus by an object or a body part other than the male sex 

organ; and “lascivious exhibition of the genitals or pubic area.” N.C.G.S. § 14-

190.13(5)(a)-(g) (2015). This review illustrates the broad range and diverse nature of 

the acts that the General Assembly sought to prohibit in protecting children from the 

harms of pornography and sexual exploitation. In light of this important purpose and 

the lengthy enumeration of acts that constitute sexual activity, I consider it to be 

beyond question that the General Assembly intended that, for purposes of the crime 

of sexual exploitation of a minor, the term “sexual activity” should include both the 

penetration of the mouth by the male sex organ as well as the mere touching of the 

male sex organ with the mouth, even without penetration. 

It is at this stage, however, that my analysis of the proper means to arrive at 

the correct outcome in this case diverges from the rationales employed by my learned 

colleagues. The necessary goal of the protection of society’s vulnerable minors from 
STATE V. FLETCHER

Morgan, J., concurring in part and concurring in result only in part.

-31-

sexual exploitation can still be accomplished in our courts without compromising this 

Court’s well-established and long-standing recognition of the need to construe 

statutes consistently. Such expected consistency would certainly include a 

construction of terminology that is harmonious throughout the spectrum of statutory 

enactments which address a given area of the criminal law. While these fundamental 

principles of statutory construction are deeply embedded in analyses routinely 

applied by this Court, the majority unfortunately departs from them in its 

interpretation of the term “intercourse” when we are called upon to ascribe a 

definition to the term “oral intercourse.”

Upon this premise, I do not subscribe to the majority’s unsupported assertion 

that “[a]doption of the definition of ‘oral intercourse’ as requiring proof of penetration 

. . . would contravene this understanding of the relevant legislative intent by 

narrowing the scope of protections” under the sexual exploitation statute.1 

Application of the well-established rules of statutory construction reveals that the 

mere touching of the male sex organ with the mouth falls under subdivision (5)(c) of 

the definitions statute—“[t]ouching, in an act of apparent sexual stimulation or 

 

1 Likewise, the State argued that mere touching of a sex organ with the mouth can 

only fall under subdivision (5)(b) as a form of “oral intercourse” and asserted that, were this 

Court to hold that “oral intercourse” requires penetration, a visual representation depicting 

the act of touching a child’s lips with a penis could not support a prosecution for sexual 

exploitation. As with all cases, the State must simply take care to indict a defendant correctly 

under the applicable statutory provision in light of the behavior constituting a criminal 

offense.
STATE V. FLETCHER

Morgan, J., concurring in part and concurring in result only in part.

-32-

sexual abuse, of the clothed or unclothed genitals”—while the penetration of the 

mouth by the male sex organ falls under subdivision (5)(b), which includes, inter alia, 

“oral intercourse.” Id. § 14-190.13(5)(b), (c). Therefore, the specific sexual activity for 

which defendant allegedly used Diane is a form of sexual exploitation of a minor, 

namely, sexual touching and not “oral intercourse.” This distinction is neither trivial 

nor academic since, as defendant observes, here “the State elected to exclusively 

indict under a theory of ‘oral intercourse,’ and it was bound to prove that theory.” See 

State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980) (A defendant may not 

be “convict[ed] upon some abstract theory not supported by the bill of indictment.”).

When, as here, a statutory term is not clear, any “ambiguity should be resolved 

so as to effectuate the true legislative intent.” State ex rel. Comm’r of Ins. v. N.C. 

Auto. Rate Admin. Office, 287 N.C. 192, 202, 214 S.E.2d 98, 104 (1975) (citing Duncan 

v. Carpenter & Phillips, 233 N.C. 422, 64 S.E.2d 410 (1951), overruled on other 

grounds by Taylor v. J. P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144 (1980), McLean 

v. Durham Cty. Bd. of Elections, 222 N.C. 6, 21 S.E.2d 842 (1942), and State ex rel. 

Thomasson v. Patterson, 213 N.C. 138, 195 S.E. 389 (1938)). In my view, the point of 

ambiguity here is simply whether the General Assembly intended to regard the 

undefined act of “oral intercourse” in the same manner as the other acts listed in 

N.C.G.S. § 14-190.13(5)(b) that contain the word “intercourse” and are clearly defined, 

or in the same manner as acts included in N.C.G.S. § 14-190.13(5)(f) as a form of 

sexual touching. In construing a statute, we presume that none of its subdivisions 
STATE V. FLETCHER

Morgan, J., concurring in part and concurring in result only in part.

-33-

are redundant. Sheffield v. Consol. Foods Corp., 302 N.C. 403, 421-22, 276 S.E.2d 

422, 434 (1981) (citing Jones v. Cty. Bd. of Educ., 185 N.C. 303, 307, 117 S.E. 37, 39 

(1923)). Accordingly, I proceed on the presumption that the subdivisions of the 

definitions statute are not duplicative and that the touching of a male sex organ to 

the mouth or lips without penetration is covered under only one of them. 

As acknowledged in the majority decision, this Court has consistently held that 

other forms of “intercourse” require penetration with the male sex organ, however 

slight. See, e.g., State v. Brown, 312 N.C. 237, 244-45, 321 S.E.2d 856, 861 (1984) 

(stating that vaginal intercourse includes the “slightest penetration of the female sex 

organ by the male sex organ”); State v. Atkins, 311 N.C. 272, 275, 316 S.E.2d 306, 308 

(1984) (stating that anal intercourse “requires penetration of the anal opening . . . by 

the penis”). The majority suggests that this definition of “intercourse” has “been 

limited in recent years2 to sexual acts that inherently involve penetration of the body 

of another by the male sex organ.” While this observation may have some interesting 

historic validity, it bears no substantive legal applicability. The legal terms “anal 

intercourse” and “vaginal intercourse” are explicitly defined as the penetration of the 

anus and vagina, respectively, by the male sex organ. Thus, the penetration element 

of “anal intercourse” and “vaginal intercourse” is only “inherent” to these acts in the 

 

2 I would observe that the sexual exploitation statutes were first enacted in 1985. The 

General Assembly’s understanding and intent in its statutory enactments before 1985 that 

are still valid, and the applicable case law interpreting them that also is still valid, should 

not be discounted merely because they are older. 
STATE V. FLETCHER

Morgan, J., concurring in part and concurring in result only in part.

-34-

way that the defining characteristics of any sex act are. In this regard, elementary 

principles of statutory construction yield the conclusion that a consistent 

interpretation of the word “intercourse” inherently contemplates “penetration.” 

In determining legislative intent, I discern no evidence that the General 

Assembly intended to “limit” or alter the meaning of the term “intercourse” when it 

drafted the sexual exploitation laws in 1985. The definition of “intercourse” as 

requiring penetration by the male sex organ appears in decisions of this Court dating 

back at least to the middle of the twentieth century, nearly seven decades ago.3 See, 

e.g., State v. Bowman, 232 N.C. 374, 375-76, 61 S.E.2d 107, 108 (1950) (“There is 

‘carnal knowledge’ or ‘sexual intercourse’ in a legal sense if there is the slightest 

penetration of the sexual organ of the female by the sexual organ of the male.”). As 

noted by the majority, “[w]hen a term has long-standing legal significance, it is 

presumed that legislators intended the same significance to attach by use of that 

term, absent indications to the contrary.” Black v. Littlejohn, 312 N.C. 626, 639, 325 

S.E.2d 469, 478 (1985) (quoting Sheffield, 302 N.C. at 427, 276 S.E.2d at 437). 

Because our case law as demonstrated in Bowman had clearly defined “intercourse”

as requiring penetration by the male sex organ some thirty-five years before the 

enactment of the sexual exploitation statutes in 1985, the General Assembly must be 

 

3 Similarly, general usage dictionaries define “sexual intercourse” as “sexual contact 

between individuals involving penetration, esp. the insertion of a man’s erect penis into a 

woman’s vagina.” New Oxford American Dictionary 1601 (3d ed. 2010) (emphasis added).
STATE V. FLETCHER

Morgan, J., concurring in part and concurring in result only in part.

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viewed to have intended this same word in the phrase “oral intercourse” to also 

require penetration. 

This legislative intent appears even clearer in light of the other terms that the 

General Assembly has employed to encompass contact between the mouth and sexual 

organs without the requirement of penetration. See, e.g., N.C.G.S. § 14-27.20(4), (5) 

(2015) (defining, for purposes of rape and other sex offenses, the term “sexual act” as 

excluding vaginal intercourse, but including “cunnilingus, fellatio, analingus, . . . anal 

intercourse,” and “the penetration, however slight, by any object into the genital or 

anal opening of another person’s body,” and the term “[s]exual contact” as “(i) 

touching the sexual organ, anus, breast, groin, or buttocks of any person, (ii) a person 

touching another person with their own sexual organ, anus, breast, groin, or buttocks, 

or (iii) a person ejaculating, emitting, or placing semen, urine, or feces upon any part 

of another person”) (emphases added). Further, it is evident that the General 

Assembly was aware of other phraseology for conduct that involves touching of sex 

organs with the mouth but without a penetration requirement. See also State v. 

Goodson, 313 N.C. 318, 319, 327 S.E.2d 868, 869 (1985) (defining fellatio and oral sex, 

neither of which require penetration); State v. Ludlum, 303 N.C. 666, 672, 281 S.E.2d 

159, 162 (1981) (defining cunnilingus as not requiring penetration).4 The majority’s 

 

4 Likewise, in contrast to the dearth of definitions for “oral intercourse” in general 

usage dictionaries, the term “oral sex” is defined—consistently—in such sources as the oral 

stimulation of another’s sex organ, without any requirement of penetration. See, e.g., New 

Oxford American Dictionary 1233 (3d ed. 2010) (defining oral sex as “sexual activity in which 
STATE V. FLETCHER

Morgan, J., concurring in part and concurring in result only in part.

-36-

efforts to deftly move between and among this myriad of sexual acts in an effort to 

harmonize their definitions with the majority’s brittle approach to statutory 

construction here present an awkward fit in the symmetry of the pertinent laws. Yet, 

in its wisdom, the General Assembly did not use any of those terms for purposes of 

sexual exploitation, instead selecting a word with a well-known, long-standing 

meaning: “intercourse.” 

Further indication of the intended meaning of the term “oral intercourse” can 

be derived from the General Assembly’s focus in the definitions statute on 

distinguishing between sexual acts that involve penetration by the male sex organ 

and those which do not. The legislature chose to separately list “vaginal intercourse” 

and “anal intercourse”—acts the majority agrees require penetration of the vagina 

and anus with the male sex organ—in N.C.G.S. § 14-190.13(5)(b); penetration of the 

vagina and anus with any other body part or object—in N.C.G.S. § 14-190.13(5)(f); 

and mere touching of the male or female genital area—in N.C.G.S. § 14-190.13(5)(c). 

Despite this plain language regarding vaginal and anal sexual activity, the majority 

concludes that “oral intercourse” alone does not require penetration because the term

was intended by the General Assembly “as a gender-neutral reference to ‘cunnilingus’ 

 

the genitals of one partner are stimulated by the mouth of the other; fellatio or cunnilingus”); 

The American Heritage Dictionary of the English Language 1236 (4th ed. 2000) (defining oral 

sex as “oral stimulation of one’s partner’s sex organs”); Merriam-Webster, 

https://www.merriam-webster.com/dictionary/oral%20sex (last visited Nov. 27, 2017) (“oral 

stimulation of the genitals: cunnilingus, fellatio”). 
STATE V. FLETCHER

Morgan, J., concurring in part and concurring in result only in part.

-37-

or ‘fellatio,’ ” neither of which requires penetration.5 The majority’s interpretation 

results in a rather haphazard categorization of various types of sexual activity replete 

with redundancy and inconsistency.

In conclusion, I therefore would deem the touching of the genitals by the mouth 

without penetration to be included in N.C.G.S. § 14-190.13(5)(c) of the definitions 

statute. I would hold that, as used in N.C.G.S. § 14-190.13, the General Assembly 

intended that the term “oral intercourse,” like “vaginal intercourse” and “anal 

intercourse,” requires penetration by the male sex organ, however slight. Therefore, 

I determine that the instruction requested by defendant was “correct in law.” See 

State v. Shaw, 322 N.C. 797, 804, 370 S.E.2d 546, 550 (1988).

Because defendant’s requested instruction was raised by the evidence 

presented and is legally correct, I would further hold that the trial court erred in 

refusing to give it, “at least in substance.” See id. at 804, 370 S.E.2d at 550 (citing 

 

5 I would note that if the legislature wished to refer to “cunnilingus” and “fellatio,” it 

could have simply used those two well-defined words in lieu of the previously undefined twoword phrase “oral intercourse.” See, e.g., Ludlum, 303 N.C. at 672, 281 S.E.2d at 162 (holding 

that “the Legislature intended by its use of the word cunnilingus to mean stimulation by the 

tongue or lips of any part of a woman’s genitalia” and not requiring penetration); State v. 

Smith, 362 N.C. 583, 593, 669 S.E.2d 299, 306 (2008) (defining “fellatio” as “any touching of 

the male sexual organ by the lips, tongue, or mouth of another person” and thus not requiring 

penetration) (quoting State v. Johnson, 105 N.C. App. 390, 393, 413 S.E.2d 562, 564, appeal 

dismissed and disc. review denied, 332 N.C. 348, 421 S.E.2d 158 (1992)). If the General 

Assembly wished to employ a gender-neutral term, it could have used another two-word 

phrase—“oral sex”—which “describe[es] a sexual act involving ‘contact between the mouth of 

one party and the sex organs of another,’ ” but not requiring penetration. Goodson, 313 N.C. 

at 319, 327 S.E.2d at 869 (quoting People v. Dimitris, 115 Mich. App. 228, 234, 320 N.W.2d 

226, 228 (1981) (per curiam)). 
STATE V. FLETCHER

Morgan, J., concurring in part and concurring in result only in part.

-38-

State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968)). Nonetheless, I do not believe 

defendant should receive a new trial based on this error, because a defendant is not 

entitled to a new trial unless he can also show prejudice, meaning there is “a 

reasonable possibility that, had the error in question not been committed, a different 

result would have been reached at the trial.” N.C.G.S. § 15A-1443(a) (2015); see also 

Shaw, 322 N.C. at 804, 370 S.E.2d at 550. When a defendant fails to meet this 

burden, an instructional error will not merit relief. N.C.G.S. § 15A-1443(a); see also 

Shaw, 322 N.C. at 804, 370 S.E.2d at 550. In my view, defendant has failed to show 

prejudice and therefore is not entitled to a new trial. Accordingly, I ultimately concur 

with the result reached by the majority, although based on different reasoning.