NO. COA13-1188

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. Forsyth County

No. 10 CRS 53412

JERROD STEPHON HILL,

Defendant.

Appeal by defendant from judgments entered 9 August 2011 by 

Judge Mark E. Klass in Forsyth County Superior Court. Heard in 

the Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Nancy D. Hardison, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate 

Defender Anne M. Gomez, for defendant-appellant. 

GEER, Judge.

Defendant Jerrod Stephon Hill appeals from his convictions 

of attempted robbery with a firearm and assault with a deadly 

weapon inflicting serious injury ("ADWISI"). The trial court 

sentenced defendant in the aggravated range based upon the 

jury's determination that two aggravating factors existed. On 

appeal, defendant makes several arguments regarding the 

sentencing phase of the trial. We agree with defendant that the 

trial court erred when it failed to hold a charge conference 
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prior to instructing the jury during the sentencing phase of the 

trial and, therefore, vacate defendant's judgment and remand for 

a new trial on sentencing.

Facts

The State's evidence tended to show the following facts. 

On 16 March 2010, Howard Moore was with his friend Little Rick 

when Rick received a phone call from defendant. Defendant told 

Rick that he had a plan to rob Michael Dyer, defendant's friend 

from high school. According to the plan, defendant, Howard, and 

Rick would go to Mr. Dyer's house and Howard would ask to use 

his bathroom. Once they were inside, they would pin Mr. Dyer 

down and rob him. Defendant and his friend Jamal Smith had been 

to the house earlier that day and had seen Mr. Dyer sleeping on 

the couch. 

A few minutes later, defendant and Jamal picked up Howard

and Rick in a SUV driven by Jamal, and they headed to Mr. Dyer's 

house. On the way there, defendant showed Howard a .22 caliber 

rifle that he had wrapped in a black shirt. 

The men arrived at Mr. Dyer's house around 1:00 p.m. Mr. 

Dyer saw the SUV pulling into his driveway and recognized 

defendant, who had been to his house a few months earlier to 

smoke marijuana. Mr. Dyer met defendant and Howard, whom Mr. 

Dyer did not recognize, at the door. Defendant asked Mr. Dyer 
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if Howard could use his bathroom, and Mr. Dyer let them inside. 

After showing Howard to the bathroom, Mr. Dyer heard someone 

behind him say, "Hey, homey." He turned around and saw Rick, 

whom he did not recognize, pointing a .22 caliber rifle at his 

head. Then, defendant punched Mr. Dyer in the face, blindsiding him. Howard came out of the bathroom, and Howard, 

defendant, and Rick began beating Mr. Dyer. Rick hit Mr. Dyer 

in the head with the butt of the rifle with such force that the 

rifle broke apart. 

Mr. Dyer attempted to fight back, at one point throwing 

defendant over a chair. Mr. Dyer then pulled out a pocket knife 

and stabbed Howard in the side and in the buttock. At that 

point, defendant said "Oh, shit. White boy has a knife[,]" and 

defendant, Howard, and Rick ran out of the house. Mr. Dyer's 

mother arrived shortly thereafter and called 911. Mr. Dyer was 

hospitalized and required extensive medical treatment including 

surgery for a fractured orbital bone and cheek bone, and

stitches for lacerations to his head and face. He continues to 

have problems with the vision in his right eye. 

Police officers recovered from Mr. Dyer's house the broken 

pieces of the butt of the rifle used to beat Mr. Dyer, the knife 

used to stab Howard, a ski mask, a doo rag with Jamal's DNA on 

it, and defendant's cell phone. Police questioned Mr. Dyer, who 
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identified defendant as one of the suspects. Later that 

afternoon, police were alerted when Howard went to the hospital 

to seek treatment for his stab wounds. Howard was interviewed 

by police at the hospital, and, although he initially denied any 

knowledge of the incident, he eventually confessed to 

participating. Howard agreed to plead guilty to a charge of 

common law burglary in exchange for his testimony against 

defendant. 

Defendant was indicted on 7 June 2010 for attempted robbery 

with a dangerous weapon, ADWISI, and assault inflicting serious 

bodily injury. On 6 July 2011, the State provided defendant 

with notice that it also intended to prove the following 

aggravating factors at trial: that defendant (1) induced others 

to participate in the commission of the offense or occupied a 

position of leadership or dominance of other participants in the 

commission of the offense, and (2) joined with more than one 

other person in committing the offense and was not charged with 

committing a conspiracy. 

At trial, defendant testified in his own defense that on 16 

March 2010, he was coming out of a corner store when he saw Rick 

and offered to pay Rick for a ride home. Howard, whom defendant 

did not know, was also in the car. As they were driving, Rick 

asked defendant if he knew where they could get some marijuana. 
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Defendant directed them to Mr. Dyer's house. When they got 

there, defendant and Howard met Mr. Dyer on the porch. 

Defendant asked Mr. Dyer if he had any weed, and Howard asked if 

he could use the bathroom. Mr. Dyer let them inside, and 

defendant and Mr. Dyer discussed marijuana while Howard went to 

the bathroom. 

Defendant testified that Howard came out of the bathroom

and blind-sided Mr. Dyer by punching him in the face. At the 

same time, Rick came in with a gun pointed at Mr. Dyer's face 

and said, "Give it up." Defendant stood there in shock at first

while Howard and Rick began beating Mr. Dyer. Then, defendant

tried to break up the fight. When Mr. Dyer stabbed Howard, 

defendant heard Rick yell, "White boy got a knife." Defendant

ran out of the house, and as he was running down the driveway, 

Rick and Howard pulled up in the car and Rick told defendant,

"Get your ass in the car." Defendant got in because Rick had a 

pistol in his lap, and he felt threatened. Defendant denied 

that he saw the rifle before the assault occurred, that he 

punched Mr. Dyer, or that he intended to rob him. 

On cross-examination, the State asked defendant about his 

interview with Detective Rick Shelton of the Winston-Salem 

Police Department when he was first arrested. When the State 

asked if defendant told Detective Shelton that he only got into 
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the car because Rick threatened him with a pistol, defendant 

claimed that he did say that to Detective Shelton. Defendant

also denied telling the detective initially that he did not know 

Mr. Dyer and then saying, "Oh, yeah, yeah, yeah. I saw Michael 

at a party on Sunday night in Clemmons where a fight broke out." 

The State then called Detective Shelton as a rebuttal 

witness and played the videotaped recording of Detective 

Shelton's interview with defendant. Detective Shelton's 

testimony and the recording showed that defendant never told 

Detective Shelton that Rick threatened him with a pistol and 

revealed other inconsistencies in defendant's testimony.

At the close of all the evidence, the State voluntarily 

dismissed the charge of assault inflicting serious bodily 

injury. The jury found defendant guilty of attempted robbery 

with a dangerous weapon and ADWISI. The court then proceeded to 

the sentencing phase of the trial to allow the jury to render a 

verdict on the aggravating factors. Neither party presented 

additional evidence on the aggravating factors. After each side 

gave closing arguments, the court instructed the jury with 

respect to the aggravating factors. The jury returned a verdict 

finding that both aggravating factors were present. 

Defendant did not argue that the trial court should find 

any mitigating factors, and the trial court sentenced him in the 
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aggravated range to a term of 100 to 129 months imprisonment for 

attempted robbery with a dangerous weapon and to a consecutive

presumptive-range term of 26 to 41 months imprisonment for 

ADWISI. Defendant filed a petition for writ of certiorari on 24 

January 2013, which this Court granted on 4 February 2013. 

Discussion

Defendant first argues that the trial court violated N.C. 

Gen. Stat. § 15A-1231(b) (2013) by failing to hold a charge 

conference prior to instructing the jury in the sentencing phase 

of the trial. Although defendant did not raise this issue at 

trial, he argues that this issue is preserved because "when a 

trial court acts contrary to a statutory mandate and a defendant 

is prejudiced thereby, the right to appeal the court's action is 

preserved, notwithstanding defendant's failure to object at 

trial." State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 

(1985). 

Defendant contends that holding a charge conference is a 

statutory mandate under N.C. Gen. Stat. § 15A-1231(b), which

provides:

Before the arguments to the jury, the judge 

must hold a recorded conference on 

instructions out of the presence of the 

jury. At the conference the judge must 

inform the parties of the offenses, lesser 

included offenses, and affirmative defenses 

on which he will charge the jury and must 

inform them of what, if any, parts of 
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tendered instructions will be given. A 

party is also entitled to be informed, upon 

request, whether the judge intends to 

include other particular instructions in his 

charge to the jury. The failure of the 

judge to comply fully with the provisions of 

this subsection does not constitute grounds 

for appeal unless his failure, not corrected 

prior to the end of the trial, materially 

prejudiced the case of the defendant.

With respect to whether holding a charge conference is a 

statutory mandate, this Court has noted that "'ordinarily, the 

word "must" and the word "shall," in a statute, are deemed to 

indicate a legislative intent to make the provision of the 

statute mandatory[.]'" State v. Inman, 174 N.C. App. 567, 570, 

621 S.E.2d 306, 309 (2005) (quoting State v. House, 295 N.C. 

189, 203, 244 S.E.2d 654, 662 (1978)). Nevertheless, "'the 

legislative intent is to be derived from a consideration of the 

entire statute'" including "'the importance of the provision 

involved.'" Id. (quoting House, 295 N.C. at 203, 244 S.E.2d at 

661, 662). "'Generally speaking, those provisions which are a 

mere matter of form, or which are not material, do not affect 

any substantial right, and do not relate to the essence of the 

thing to be done so that compliance is a matter of convenience 

rather than substance, are considered to be directory.'" Id. 

(quoting House, 295 N.C. at 203, 244 S.E.2d at 661-62).

The purpose of a charge conference is to allow the parties 

to discuss the proposed jury instructions to "insure that the 
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legal issues are appropriately clarified in a manner that 

assists the jury in understanding the case and in reaching the 

correct verdict," Irving Joyner, Criminal Procedure in North 

Carolina § 11.17 (3d ed. 2005), and "to enable counsel to know 

what instructions will be given so that counsel will be in a 

position to argue the facts in light of the law to be charged to 

the jury." 

State v. Wilson, 354 N.C. 493, 524, 556 S.E.2d 272, 292 (2001) 

(Butterfield, J., concurring), overruled on other grounds by 

State v. Millsaps, 356 N.C. 556, 572 S.E.2d 767 (2002). After 

considering N.C. Gen. Stat. § 15A-1231(b) as a whole, including 

the importance of allowing the parties an opportunity to be 

heard regarding jury instructions and the use of the word 

"must," we conclude that holding a charge conference is 

mandatory, and a trial court's failure to do so is reviewable on 

appeal even in the absence of an objection at trial.

The State argues, however, that N.C. Gen. Stat. § 15A1231(b) should not apply to trials regarding the existence of 

aggravating factors in non-capital cases. The State asserts 

that N.C. Gen. Stat. § 15A-1340.16(a1) (2013) sets forth all the 

procedural requirements for sentencing a defendant in the 

aggravated range and, because N.C. Gen. Stat. § 15A-1340.16(a1)

does not specifically require the court to hold a separate 
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charge conference, the trial court was not required to do so. 

We disagree. 

N.C. Gen. Stat. § 15A-1340.16(a1) provides, in pertinent 

part, that if the defendant does not admit to the existence of 

an aggravating factor, "only a jury may determine if an 

aggravating factor is present in an offense." The statute 

further provides:

The jury impaneled for the trial of the 

felony may, in the same trial, also 

determine if one or more aggravating factors 

is present, unless the court determines that 

the interests of justice require that a 

separate sentencing proceeding be used to 

make that determination. If the court 

determines that a separate proceeding is 

required, the proceeding shall be conducted 

by the trial judge before the trial jury as 

soon as practicable after the guilty verdict 

is returned. . . . If the trial jury is 

unable to reconvene for a hearing on the 

issue of whether one or more aggravating 

factors exist after having determined the 

guilt of the accused, the trial judge shall 

impanel a new jury to determine the issue. 

A jury selected to determine whether one or 

more aggravating factors exist shall be 

selected in the same manner as juries are 

selected for the trial of criminal cases.

Id. 

The statute goes on to address the procedure to be followed 

(1) when a defendant admits the aggravating factor, (2) when a 

defendant pleads guilty to the underlying felony but contests 

the existence of an aggravating factor, and (3) when the State 
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seeks to establish a prior record level point under N.C. Gen. 

Stat. § 15A-1340.14(b)(7) (2013). See N.C. Gen. Stat. § 15A1340.16(a2), (a3), (a5). The statute also sets out requirements 

for pleading or giving notice of an intent to use aggravating 

factors or seek addition of prior record level points. See N.C. 

Gen. Stat. § 15A-1340.16(a4), (a5), (a6).

Nothing in the statute addresses the specifics of how the 

trial court should conduct a separate sentencing proceeding 

before the jury that decided the underlying felony charge or a 

separate sentencing proceeding before a newly empanelled jury. 

N.C. Gen. Stat. § 15A-1340.16 simply does not attempt to 

regulate how the trial court should conduct the sentencing 

proceedings, and we can glean no intent to mandate a different 

procedure than that which governs trials of criminal offenses. 

Accordingly, we hold that N.C. Gen. Stat. § 15A-1231 applies to 

sentencing proceedings under N.C. Gen. Stat. § 15A-1340.16(a1). 

If, as occurred in this case, the trial court decides to 

hold a separate sentencing proceeding on aggravating factors as 

permitted by N.C. Gen. Stat. § 15A-1340.16(a1), and the parties 

did not address aggravating factors at the charge conference for 

the guilt-innocence phase of the trial, N.C. Gen. Stat. § 15A1231 requires that the trial court hold a separate charge 

conference before instructing the jury as to the aggravating 
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factor issues. The trial court's failure to do so in this case 

was error. 

We note, however, that N.C. Gen. Stat. § 15A-1231(b)

(emphasis added) provides that "[t]he failure of the judge to 

comply fully with the provisions of this subsection does not 

constitute grounds for appeal unless his failure, not corrected 

prior to the end of the trial, materially prejudiced the case of 

the defendant." In this case, however, the trial court did not 

comply with N.C. Gen. Stat. § 15A-1231(b) at all. 

This Court considered the failure to hold a charge 

conference under a prior version of N.C. Gen. Stat. § 15A1231(b) in State v. Clark, 71 N.C. App. 55, 57, 322 S.E.2d 176, 

177 (1984), disapproved of on other grounds by State v. Moore, 

327 N.C. 378, 395 S.E.2d 124 (1990). That version included the 

same requirement of a showing of material prejudice if the trial 

court failed to "'fully'" comply with the requirement for a 

recorded charge conference. Id. (quoting N.C. Gen. Stat. § 15A1231(b) (1983)). However, the 1983 statute only required a 

recorded charge conference if one of the parties requested it. 

Id. 

In Clark, the Court held that because the defense counsel 

had requested a charge conference, the trial court was "mandated 

. . . to conduct a recorded instruction conference under G.S. § 
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15A-1231(b)." Id. at 58, 322 S.E.2d at 178. As in this case, 

the trial court, however, failed to hold any conference at all, 

recorded or otherwise. Id. Without requiring any showing of 

prejudice, this Court held "that the trial court's failure to 

hold a jury instruction conference requires a new trial." Id. 

Under the current version of N.C. Gen. Stat. § 15A-1231(b),

the trial court was mandated to hold a charge conference even 

without a request. Therefore, under Clark, the trial court's 

failure to hold the mandated conference "requires a new trial." 

71 N.C. App. at 58, 322 S.E.2d at 178.

Even if Clark were not controlling, we hold that defendant 

has shown sufficient prejudice. Here, in addition to not 

holding a charge conference, the trial court, contrary to the 

General Rules of Practice, did not, following his charge to the 

jury, give counsel an opportunity to object to the charge. See

Gen. R. Pract. Super. and Dist. Ct. 21 ("At the conclusion of 

the charge and before the jury begins its deliberations, and out 

of the hearing, or upon request, out of the presence of the 

jury, counsel shall be given the opportunity to object on the 

record to any portion of the charge, or omission therefrom[.]"). 

As a result, defense counsel was unable to have any input into 

the jury instructions at all.
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Because of the importance of jury instructions, the role 

the charge conference plays in ensuring that the instructions 

are clear and correct and framed in the most effective way for a 

particular party, and the ambiguities and omissions in the 

instructions and verdict sheet that defendant has pointed out 

that could have been corrected during a charge conference, we 

believe that defendant has shown material prejudice. We, 

therefore, vacate defendant's judgment and remand for a new 

sentencing proceeding. 

Given our disposition of this appeal, we need not address 

defendant's specific arguments regarding the instructions 

because they are unlikely to be repeated on remand. We do note, 

however, that while defendant has argued on appeal that the 

trial court erred in submitting the N.C. Gen. Stat. § 15A1340.16(d)(2) aggravating factor when he was likely convicted of 

attempted armed robbery under an acting in concert theory, the 

Supreme Court has recently rejected that argument in State v. 

Facyson, ___ N.C. ___, ___, 758 S.E.2d 359, 364 (2014) (holding 

that because N.C. Gen. Stat. § 15A-1340.16(d)(2) requires 

evidence that defendant joined with at least two other people to 

commit the offense while acting in concert requires only one 

person, "[a]ny evidence that defendant joined with more than one 

person [is] 'additional evidence' unnecessary to prove that 
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defendant acted in concert in committing the [offense]" (quoting 

State v. Thompson, 309 N.C. 421, 422, 307 S.E.2d 156, 158 

(1983)).

Vacated and remanded.

Judges ROBERT C. HUNTER and McCULLOUGH concur.