{
  "id": 11797170,
  "name": "STATE OF NORTH CAROLINA v. ANTHONY JAMES LOVE",
  "name_abbreviation": "State v. Love",
  "decision_date": "1997-09-16",
  "docket_number": "No. COA96-1540",
  "first_page": "437",
  "last_page": "439",
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    "name": "North Carolina Court of Appeals"
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      "cite": "N.C. Gen. Stat. \u00a7 14-33",
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      "cite": "380 S.E.2d 128",
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    {
      "cite": "334 N.C. 54",
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      "cite": "295 S.E.2d 375",
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          "parenthetical": "rejecting the proposition that the facts of a particular case determine whether one crime is a lesser included offense of another"
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          "page": "379",
          "parenthetical": "holding that taking indecent liberties with a child is not a lesser included offense of statutory rape given the differing age elements"
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        {
          "parenthetical": "noting that acquittal rendered any error regarding offense harmless"
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    {
      "cite": "56 N.C. App. 163",
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          "parenthetical": "noting that acquittal rendered any error regarding offense harmless"
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      "cite": "310 S.E.2d 587",
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      "cite": "310 N.C. 1",
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  "last_updated": "2023-07-14T19:43:16.540119+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges JOHN and SMITH concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ANTHONY JAMES LOVE"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nFollowing grand jury indictments on taking indecent liberties with a child and second degree sexual offense, a jury convicted the defendant of only the indecent liberty charge. Thereafter, Judge Richard B. Allsbrook sentenced him to five years imprisonment. Although in this appeal, defendant identifies several assignments of error, he argues only that the trial court erred by denying his request to instruct on the assault on a female and simple assault, both of which he contends are lesser included offenses of second degree sexual offense and taking indecent liberties with a child. We disagree.\nAt the outset, we note that defendant\u2019s acquittal of second degree sexual offense, the greater offense, is tantamount to an acquittal of all possible lesser included offenses. State v. Beach, 283 N.C. 261, 270, 196 S.E.2d 214, 220 (1973), overruled in part on other grounds by State v. Adcock, 310 N.C. 1, 310 S.E.2d 587 (1984). Therefore, \u201cthe jury verdict rendered nonprejudicial the failure of the trial judge to submit. . . lesser included offense[s].\u201d Id.; see also State v. Berkley, 56 N.C. App. 163, 287 S.E.2d 445 (1982) (noting that acquittal rendered any error regarding offense harmless). Accordingly, we address defendant\u2019s argument only as it pertains to the taking indecent liberties with a child conviction.\nIt is well established that \u201cthe definitions accorded the crimes determine whether one offense is a lesser included offense of another crime.\u201d State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378 (1982), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). Moreover, \u201call of the essential elements of the lesser crime must also be essential elements included in the greater crime.\u201d Id. at 635, 295 S.E.2d at 379.\nHere, defendant cites no authority for the proposition that assault on a female is a lesser included offense of taking indecent liberties with a child. Indeed, applicable case law and a review of both offenses show that assault on a female is not a lesser included offense of taking indecent liberties with a child.\nIn State v. Holman, 94 N.C. App. 361, 380 S.E.2d 128 (1989), this Court specifically rejected a defendant\u2019s argument that assault on a female under twelve was a lesser included offense of taking indecent liberties with a child. In doing so, we stated:\nClearly, assault is not an essential element of taking indecent liberties with a child. Since assault is an essential element of the crime of assault on a child under the age of 12 years, this offense cannot be a lesser included offense of taking indecent liberties with a child.\nId. at 364, 380 S.E.2d at 130. Although Holman dealt with assault on a female under twelve, its reasoning applies with equal force to assault on a female. Plainly, if the assault in Holman was not an essential element of taking indecent liberties with a child, the assault in this case is no more so. See Weaver, 306 N.C. at 635, 295 S.E.2d at 378 (rejecting the proposition that the facts of a particular case determine whether one crime is a lesser included offense of another).\nFurthermore, we note that the age requirements contained in each offense prevents recognition of assault on a female as a lesser included offense. For example, an indecent liberties conviction requires that the victim be under sixteen years old, and that the offender be at least sixteen years old and at least five years older than the victim. N.C. Gen. Stat. \u00a7 14-202.1 (1993). In comparison, assault on a female requires that the offender be at least eighteen years old. N.C. Gen. Stat. \u00a7 14-33(b)(2) (1993). It follows that assault on a female is not a lesser included offense of taking indecent liberties with a child because assault on a female contains elements not present in the greater offense. See Weaver, 306 N.C. at 636, 295 S.E.2d at 379 (holding that taking indecent liberties with a child is not a lesser included offense of statutory rape given the differing age elements).\nBased on the foregoing, we hold that the trial court properly refused to instruct on assault on a female as a lesser included offense of taking indecent liberties with a child. In sum, we find that the defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges JOHN and SMITH concur.\n. We omit a detailed recitation of the facts of this case because such facts are not necessary to resolve the legal issues presented in this appeal.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Assistant Attorney General Elizabeth L. Oxley, for the State.",
      "Michael Lee Frazier for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ANTHONY JAMES LOVE\nNo. COA96-1540\n(Filed 16 September 1997)\n1. Criminal Law \u00a7 819 (NCI4th Rev.)\u2014 lesser included offenses \u2014 failure to instruct \u2014 error cured by acquittal\nDefendant\u2019s acquittal of second-degree sexual offense rendered harmless any error in the trial court\u2019s failure to instruct the jury on the lesser included offenses of assault on a female and simple assault.\n2. Crime Against Nature \u00a7 4 (NCI4th)\u2014 indecent liberties with child \u2014 assault on female not lesser offense\nAssault on a female is not a lesser included offense of taking indecent liberties with a child because assault on a female contains elements not present in the offense of taking indecent liberties; therefore, the trial court did not err by refusing to instruct on assault on a female as a lesser included offense in a prosecution for taking indecent liberties with a child.\nAppeal by defendant from judgment entered 19 April 1996 by Judge Richard B. Allsbrook in Halifax County Superior Court. Heard in the Court of Appeals 11 August 1997.\nAttorney General Michael F. Easley, by Assistant Attorney General Elizabeth L. Oxley, for the State.\nMichael Lee Frazier for defendant-appellant."
  },
  "file_name": "0437-01",
  "first_page_order": 473,
  "last_page_order": 475
}