State of North Carolina v. Christopher Robert Jarmul (COA25-599) is a Wake County case in which Mr. Jarmul was convicted of multiple sex related offenses involving a minor. Although there were six judgments entered against Mr. Jarmul, he only appealed one of them. His appeal was based on an alleged error in the trial court’s jury instruction and the subsequent sentencing based on that alleged error.
In December of 2022, the Cary, North Carolina Police Department received cybertips from the National Center for Missing and Exploited Children (NCMEC). The cybertips centered around complaints of apparent child pornography that had been submitted to NCMEC. The cybertips contained an IP address that was linked to Mr. Jarmul. Information from the cybertips and surveillance of Mr. Jarmul’s home revealed that he had a young daughter. The Cary Police executed a search warrant of Mr. Jarmul’s home where all electronic devices in the home were seized except for the work computer of Mr. Jarmul’s wife. Mr. Jarmul’s homemade desktop computer was seized and a forensic analysis was conducted on it. The forensic analysis revealed two images and a video of Mr. Jarmul touching his daughter’s genitals and penetrating her inner labia with his finger. Mr. Jarmul was arrest shortly afterward.
In February of 2023, Mr. Jarmul was indicted on two counts of first-degree statutory sexual offense, three counts of first-degree sexual exploitation of a minor, and twenty counts of second-degree sexual exploitation of a minor. Mr. Jarmul’s trial took place in February of 2024 and he was found guilty by a jury of all charges. Six judgments were entered against Mr. Jarmul and he received consecutive sentences. One of the judgments entered against Mr. Jarmul was imprisonment for 300 to 420 months for two counts of first-degree statutory sexual offense. He gave notice of appeal in open court.
On appeal, Mr. Jarmul argued that the trial court erred by instructing the jury on the charge of statutory sexual offense with a child by an adult because he was indicted on the lesser charge of first-degree statutory sexual offense. The distinction here is important to Mr. Jarmul because the greater offense, statutory sexual offense with a child by an adult, carries a mandatory minimum sentence of 300 months. This mandatory minimum is greater than what is allowed for the offense of first-degree statutory sexual offense. In his appeal, Mr. Jarmul did not request a dismissal of the charges. The relief he sought was a remand for resentencing at the punishment prescribed for the lesser offense. The State argued that the issue raised by Mr. Jarmul is nothing more than a “clerical error.” In support of this argument, the State contends that the indictments properly allege the facts that support the charge of statutory sexual offense with a child by an adult as provided in N.C.G.S. §14-27.28.
The core issue on appeal is whether Mr. Jarmul was indicted on statutory sexual offense with a child by an adult which is found in N.C.G.S. §14-27.28 or was he indicted on the lesser charge of first-degree statutory sexual offense under N.C.G.S. §14-27.29. The trial court instructed the jury and sentenced Mr. Jarmul in accordance with the greater charge. He did not object to the jury instruction so the issue was not properly preserved for appellate review. When an issue is not preserved for appellate review, the appellate Court will conduct its review for plain error.
Plain error is strenuous standard to satisfy. The defendant must first show that a fundamental error occurred at trial. Then the defendant will need to show that but for that error, it is probable that the jury would have arrived at a different result. Finally, the defendant must show that the error is an exceptional case in that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. State v. Gillard, 356 N.C. 797, 909 S.E. 2d 226 (2024)
The appellate Court found that Mr. Jarmul did not “specifically and distinctly” allege plain error. He also did not argue that the jury probably would have returned a different verdict had the alleged error not occurred. The Court also noted that Mr. Jarmul did not offer a reason why his case was an “exceptional case.” Therefore, the appellate Court was unable to conduct any meaningful review for plain error.
However, the Court did note that its review of the record indicated that the trial court did not err by instructing the jury on the charge of statutory sexual offense with a child by an adult. The Court found that all of the relevant elements for the offense of statutory sexual offense with a child by an adult were contained in the indictment. The indictments for the two charges were entitled “FIRST DEGREE STATUTORY SEX OFFENSE” and the statutory reference given in the indictments was N.C.G.S. §14-27.29 which is the statute for first-degree statutory sexual offense. The actual language in the indictment lists elements and facts that pertain to statutory sexual offense with a child by an adult. The actual indictments state in part: “defendant named above unlawfully, willfully, and feloniously did engage in a sexual act other than vaginal intercourse with…a child under the age of thirteen years. At the time of the act the Defendant was at least eighteen years of age, having a date of birth of [] 1985. This act was done in violation of NCGS § 14-27.29.”
The indictments allege facts to support each element of statutory sexual offense with a child by an adult as found in N.C.G.S. §14-27.28. The appellate Court concluded that the error found in the citation in the indictment was not grounds for a dismissal of the charges or a reversal of the conviction. However, the Court did conclude that the record should be accurate therefore the clerical errors that exist must be corrected. The appellate Court ruled that the sentence imposed on Mr. Jarmul was appropriate for his conviction of statutory sexual offense with a child by an adult under N.C.G.S. §14-27.28. The errors in the judgment were determined by the appellate Court to be clerical and the case was remanded to the trial court for the solely for correcting the offense description and the general statute number to the offense of statutory sexual offense with a child by an adult under N.C.G.S. §14-27.28
This case illustrates the importance of carefully reading indictments and making every effort to insure that the language in the indictment matches the statute number of the charged offense. We also see in this case the importance of raising objections, even during the charge conference, should such an objection be meritorious. The question remains what analysis would the appellate Court have conducted had the issue been properly preserved for appellate review. This case presents many useful learning points for both trial and appellate criminal practitioners.
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