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  "name": "STATE OF NORTH CAROLINA v. JAMES CLAYTON CORBETT",
  "name_abbreviation": "State v. Corbett",
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  "casebody": {
    "judges": [
      "Judges TIMMONS-GOODSON and HUDSON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES CLAYTON CORBETT"
    ],
    "opinions": [
      {
        "text": "CAMPBELL, Judge.\nDefendant was convicted by a jury of second degree sexual offense and five other charges on 22 March 2001. Regarding the second degree sexual offense conviction the court found as an aggravating factor that defendant \u201ctook advantage of a position of trust\u201d and as mitigating factors that \u201cthe defendant has been a person of good character or has a good reputation in the community in which the defendant lives,\u201d and \u201cthe defendant supports the defendant\u2019s family, the defendant has a support system in the community, he has a positive employment history.\u201d The court found that the \u201cfactors in aggravation outweigh the factors in mitigation\u201d and sentenced defendant to thirty years. The remaining convictions are not appealed.\nThe conviction for second degree sexual offense was for offenses against defendant\u2019s stepdaughter, Jodi Coor West (\u201cJodi\u201d), from on or about 12 December 1983, when Jodi was twelve, up to and including 11 December 1987, just before Jodi turned sixteen. The evidence tended to show that Jodi was born 12 December 1971 and lived with defendant from the age of five or six until she was twenty-four.\nJodi testified defendant \u201cwould come into my bedroom and he would get in the bed and he would begin fondling me. . . . [H]e inserted his fingers into my vagina with penetration.\u201d He would fondle her bare breast and the penetration \u201cwas very uncomfortable.\u201d Jodi testified that she didn\u2019t know it was wrong, just \u201cknew it was uncomfortable, but I mean I was only a young child and he was supposed to be my father figure.\u201d Jodi further testified defendant \u201csaid let\u2019s kiss like boyfriend and girlfriend\u201d and \u201cwould insert his tongue into my mouth.\u201d Jodi explained that defendant also would fondle her breasts, \u201cI\u2019d be washing dishes or vacuuming or doing different things and he\u2019d come up behind me, run his hand up my shirt with or without a bra on, and if I had a bra on he\u2019d push it up. . . . It seemed like an eternity but I\u2019m sure it was just several minutes and he would kiss on my neck.\u201d Jodi elaborated that the fondling \u201cwas a lot more common occurrence than the penetration. He would get us \u2014 get me on the couch or if I\u2019d be sitting there he\u2019d come up and sit beside me and do that also.\u201d Other than the penetration, Jodi testified defendant also would pinch at her vagina through her clothes.\nDuring this time, Jodi testified, defendant acted as a father, and she treated him as such. When asked why she didn\u2019t know it was wrong, Jodi explained \u201cI knew \u2014 I felt that it was wrong, but whenever he tells you that it\u2019s okay because he is your father figure and you\u2019re only a young child, I mean, what are you supposed to believe?\u201d\nCorroborating Jodi\u2019s testimony was the testimony of Sergeant Ronald Baker of the Wayne County Sheriff\u2019s Department, Jodi\u2019s husband, great-uncle, great-aunt, and sister, all of whom testified regarding prior consistent statements Jodi made detailing the abuse. Defendant testified that he never sexually abused Jodi. Three people testified to defendant\u2019s good character.\nDefendant asserts the trial court erred by: (I) failing to dismiss for insufficient evidence charge one, of second degree forcible sexual offense; (II) overruling defendant\u2019s objection to the State\u2019s closing argument; (III) finding as an aggravating factor that defendant \u201ctook advantage of a position of trust.\u201d\nI. Motion to Dismiss Charge One\nTo review a motion to dismiss for insufficient evidence, this Court asks \u201cwhether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u201d State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). \u201cSubstantial evidence is that which a reasonable juror would consider sufficient to support a conclusion that each essential element of the crime exists.\u201d State v. Baldwin, 141 N.C. App. 596, 604, 540 S.E.2d 815, 821 (2000). \u201cIn reviewing challenges to the sufficiency of evidence, the evidence must be viewed in the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u201d State v. Payne, 149 N.C. App. 421, 424, 561 S.E.2d 507, 509 (2002).\nThe crime charged was second degree sexual offense. \u201cA person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person: (1) [b]y force and against the will of the other person. . . . Any person who commits the offense defined in this section is guilty of a Class C felony.\u201d N.C. Gen. Stat. \u00a7 14-27.5 (2001). \u201cSexual act means . . . the penetration, however slight, by any object into the genital. . . opening of another person\u2019s body.\u201d N.C. Gen. Stat. \u00a7 14-27.1(4) (2001).\nDefendant asserts the State failed to prove the element of force. \u201cThe requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion:\u201d State v. Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987). Usually, \u201c[constructive force is demonstrated by proof of threats or other actions by the defendant which compel the victim\u2019s submission to sexual acts.\u201d Id. The \u201c[t]hreats need not be explicit so long as the totality of circumstances allows a reasonable inference that such compulsion was the unspoken purpose of the threat.\u201d Id.\nIn the case of a parent-child relationship, however, \u201cconstructive force [may] be reasonably inferred from the circumstances surrounding the parent-child relationship.\u201d Id., 319 N.C. at 47, 352 S.E.2d at 681. \u201cThe youth and vulnerability of children, coupled with the power inherent in a parent\u2019s position of authority, creates a unique situation of dominance and control in which explicit threats and displays of force are not necessary to effect the abuser\u2019s purpose.\u201d Id. \u201cAs one commentator observes, force can be understood in some contexts as the power one need not use. Estrich, Rape, 95 Yale L.J. 1087, 1115 (1986). In such cases the parent wields authority as another assailant might wield a weapon. The authority itself intimidates; the implicit threat to exercise it coerces.\u201d Id., 319 N.C. at 48, 352 S.E.2d at 682.\nIn Etheridge the element of force was implied from the circumstances surrounding the parent-child relationship, including: the fact that the victim was only eight years old when the abuse began, which \u201cconditioned [the victim] to succumb to defendant\u2019s illicit advances at an age when he could not yet fully comprehend the implications of defendant\u2019s conduct;\u201d and \u201c[t]he [fact that the] incidents of abuse all occurred while the boy lived as an unemancipated minor in defendant\u2019s household, subject to defendant\u2019s parental authority and threats of disciplinary action.\u201d Id., 319 N.C. at 47-48, 352 S.E.2d at 681. In State v. Hardy, 104 N.C. App. 226, 232, 409 S.E.2d 96, 99 (1991), the Court found constructive force was inferred from the circumstances surrounding the parental relationship, including: \u201c[t]he defendant, the victim\u2019s step-father, began abusing the victim when she was only fifteen years old. Each episode of abuse occurred while the victim lived with the defendant as an unemancipated minor in the defendant\u2019s trailer and subject to his parental authority.\u201d\nWe now consider whether circumstances similar to Etheridge and Hardy are present in the case at bar. The abuse began when Jodi was approximately twelve years old. She testified, \u201cI knew it was uncomfortable, but I mean I was only a young child\u201d and \u201cI felt that it was wrong, but whenever he tells you that it\u2019s okay because he is your father figure and you\u2019re only a young child, I mean, what are you supposed to believe?\u201d Jodi further testified that defendant acted like her father, disciplined her, and that she treated him as her father. During the dates in question, Jodi was ages twelve through sixteen and was not emancipated and was subject to defendant\u2019s parental authority. From the circumstances of the parental relationship, we find there is sufficient evidence from which a reasonable jury could conclude defendant used his position of power to force his stepdaughter to engage in sexual acts.\nII. Defendant\u2019s objection to the State\u2019s closing argument\nDefendant asserts the trial court erred in overruling his objection to the State\u2019s closing argument in which the prosecutor said \u201c [i]f [the defendant] just says \u2018I\u2019m your daddy\u2019 that is force.\u201d Without determining whether this statement was error, in light of the evidence discussed in section (I), we do not find a reasonable possibility exists that had this statement not been made a different result would have been reached by the jury. Therefore even assuming arguendo that there was error it was not prejudicial error.\nIII. The aggravating factor\nDefendant asserts the trial court erred in finding as an aggravating factor that defendant \u201ctook advantage of a position of trust.\u201d N.C. Gen. Stat. \u00a7 15A-1340.16(d)(15) (2001). \u201cEvidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation.\u201d N.C. Gen. Stat. \u00a7 15A-1340.16(d) (2001). To prove the element of force, as discussed in section (I), the State used the evidence of the circumstances surrounding the parental relationship. This evidence is the same evidence used to prove that \u201cdefendant took advantage of a position of trust.\u201d Therefore, the trial court erred in finding this aggravating factor and defendant must be re-sentenced without consideration of this element as an aggravating factor.\nAffirmed in part, reversed in part, remanded for re-sentencing.\nJudges TIMMONS-GOODSON and HUDSON concur.\n. Paula Corbett, defendant\u2019s biological daughter, was also a victim of defendant\u2019s abuse. For abuse of Paula, defendant was found guilty of indecent liberties with a child.",
        "type": "majority",
        "author": "CAMPBELL, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Sarah Ann Lannom, for the State.",
      "Barnes, Braswell & Haithcock, P.A., by Glenn A. Barfield, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES CLAYTON CORBETT\nNo. COA02-35\n(Filed 17 December 2002)\n1. Sexual Offenses\u2014 constructive force \u2014 parental relationship\nThere was sufficient evidence of constructive force in a second-degree sexual offense conviction where the victim was defendant\u2019s step-daughter; the abuse in question began when she was twelve and continued until she was sixteen; and the victim testified that defendant acted like her father, disciplined her, and that she treated him as her father. Constructive force may be inferred from the circumstances surrounding the parental relationship.\n2. Sexual Offenses\u2014 prosecutor\u2019s argument \u2014 constructive force\nIn light of the evidence, there was no reasonable possibility of a different result in a second-degree sexual offense prosecution without the prosecutor\u2019s closing argument that it was force if the defendant just said \u201cI\u2019m your daddy.\u201d\n3. Sentencing\u2014 aggravating factors \u2014 abuse of trust \u2014 used to prove element of sexual offense\nThe trial court erred in a second-degree sexual offense prosecution by finding as an aggravating factor that defendant took advantage of a position of trust after the State used the same evidence (circumstances surrounding the parental relationship) to prove the element of force.\nAppeal by defendant from judgment entered 22 March 2001 by Judge Paul L. Jones in Wayne County Superior Court. Heard in the Court of Appeals 10 October 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Sarah Ann Lannom, for the State.\nBarnes, Braswell & Haithcock, P.A., by Glenn A. Barfield, for defendant-appellant."
  },
  "file_name": "0713-01",
  "first_page_order": 741,
  "last_page_order": 746
}
