{ "id": 4166708, "name": "STATE OF NORTH CAROLINA v. WESLEY TYLER CORBETT", "name_abbreviation": "State v. Corbett", "decision_date": "2009-04-21", "docket_number": "No. COA08-1300", "first_page": "508", "last_page": "512", "citations": [ { "type": "official", "cite": "196 N.C. App. 508" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "671 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642556 ], "year": 2009, "pin_cites": [ { "page": "61", "parenthetical": "citing State v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987)" } ], "opinion_index": 0, "case_paths": [ "/se2d/671/0053-01" ] }, { "cite": "155 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1967, "pin_cites": [ { "page": "305" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "270 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569982 ], "year": 1967, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0655-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "295 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "378-79", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "306 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573306 ], "year": 1982, "pin_cites": [ { "page": "635", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0629-01" ] }, { "cite": "352 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "319 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741158 ], "year": 1987, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0034-01" ] }, { "cite": "154 L. Ed. 2d 71", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "537 U.S. 845", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9214464, 9214752, 9214726, 9214633, 9214666, 9214506, 9214603, 9214445, 9214575, 9214800, 9214687, 9214484, 9214774, 9214550, 9214431 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/537/0845-03", "/us/537/0845-13", "/us/537/0845-12", "/us/537/0845-09", "/us/537/0845-10", "/us/537/0845-05", "/us/537/0845-08", "/us/537/0845-02", "/us/537/0845-07", "/us/537/0845-15", "/us/537/0845-11", "/us/537/0845-04", "/us/537/0845-14", "/us/537/0845-06", "/us/537/0845-01" ] }, { "cite": "558 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "152" } ], "opinion_index": 0 }, { "cite": "355 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219986 ], "year": 2002, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 569, "char_count": 9031, "ocr_confidence": 0.734, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.34706502193757244 }, "sha256": "bb79f3e4e89c02f6613bd5ed743719e2bab0ee370e37f2bbae60f522fd4dfce3", "simhash": "1:9b0e0605f6e80dfe", "word_count": 1453 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WESLEY TYLER CORBETT" ], "opinions": [ { "text": "STEELMAN, Judge.\nAssault is not a lesser included offense of the crime of misdemeanor sexual battery.\nI. Factual and Procedural Background\nIn August 2006, Jessica Head (Jessica) enrolled in the carpentry program at Forsyth Technical Community College (Forsyth Tech). A member of her class was Wesley Tyler Corbett (defendant). Defendant sat directly behind Jessica in class. Defendant would grunt, groan, and talk to himself during class.\nApproximately two weeks after the class began, the students started having lessons in the workshop. Jessica sat across the room from defendant in the workshop. About a week after being in the workshop, defendant was removed from the class. When defendant returned, he was accompanied by a social worker. Forsyth Tech staff asked the classmates to keep a log of defendant\u2019s strange and unusual behavior, which Jessica did on her cell phone.\nApproximately three weeks after the class began, the students relocated to a jobsite, building Habitat for Humanity houses. The students took a tour of the site, and defendant followed Jessica, staying right behind her. Defendant tried to talk to Jessica several times.\nDefendant made Jessica feel uneasy because of a series of incidents, which occurred over the duration of the class: he-exposed his penis in class and fondled himself, making rapid up-and-down movements; he referred to himself as, and insisted on being called, \u201cNighthawk;\u201d and on one occasion, defendant told Jessica she was beautiful and that \u201che was a lesbian and he would love to be [her] girlfriend.\u201d\nOn 24 October 2006, Jessica and defendant were at the Habitat for Humanity jobsite. Jessica was installing a two-by-four, and defendant stood right behind her breathing in her ear. Every time Jessica would pound the nail with a hammer, defendant would yell, \u201cWhack it, baby.\u201d Defendant started panting and getting very excited. Jessica panicked, handed her hammer to defendant, and went to lunch with classmates. After lunch, Jessica went to retrieve her tool belt and saw defendant \u201chunkered down\u201d behind some scaffolding. Upon seeing defendant, Jessica became very nervous, grabbed her tool belt, and put it on. Jessica \u201cleapt into the house and he was right on [her] heels.\u201d Defendant picked Jessica up by her hips and lifted her so her feet did not touch the ground. Defendant performed several pelvic thrusts against Jessica\u2019s buttocks. Both Jessica and defendant had their clothes on. A classmate, Joseph Pitts (Pitts), testified that defendant performed three or four thrusts into Jessica\u2019s buttocks. Pitts heard defendant grunt several times while he held Jessica and Jessica yell \u201cGet off of me\u201d and \u201cLeave me alone.\u201d Jessica hit defendant with her elbow and was able to extricate herself.\nJessica ran to two classmates and \u201cwedged\u201d herself in between them, with defendant following her and stepping on her shoes. Defendant walked off \u201cmoaning and groaning and complaining.\u201d Jessica testified she was embarrassed and told the two classmates, \u201cHe just picked me up and humped me.\u201d\nDefendant was charged with a misdemeanor sexual battery pursuant to N.C. Gen. Stat. \u00a7 14-27.5A(a).\nFollowing his arrest, Officer M.C. Merritt (Officer Merritt) testified defendant made an \u201cunsolicited, spontaneous utterance, stating T did not touch her.\u2019\u201d Officer Merritt had not told defendant who \u201cher\u201d was. Officer Merritt testified that after being fingerprinted at the police station, defendant stood up, put his hands behind his back and stated in an excited manner, \u201cOoh, ooh I want you to put the cuffs on me.\u201d\nOn 4 February 2008, defendant was tried before a jury. Defendant\u2019s mother, Pamela Corbett (Corbett), a clinical psychologist, testified defendant has Tourette\u2019s syndrome, which has an underlying feature of obsessive-compulsive behavior, and he has two developmental delays: language and emotional. Corbett further testified defendant also has coprolalia, which means compulsive swearing and using offensive terms. Corbett testified that defendant takes medication for his conditions.\nPsychiatrist Kyle Long (Dr. Long) also testified. Dr. Long testified that none of defendant\u2019s diagnoses cause hypersexuality, and defendant\u2019s medication would not cause him to be more sexually aggressive.\nAt the jury charge conference, defendant requested an instruction on the offense of simple assault, as a lesser included offense of sexual battery. The trial court denied defendant\u2019s request. The jury found defendant guilty of sexual battery. Defendant was sentenced to seventy-five days in the common jail of Forsyth County. This sentence was suspended, and defendant was placed on supervised probation for twenty-four months.\nDefendant appeals.\nII. Analysis\nIn his first argument, defendant contends that the trial court erred in refusing to instruct the jury on simple assault as a lesser included offense of sexual battery. We disagree.\nOur Supreme Court has stated that the issue of jury instructions is a matter within the trial court\u2019s discretion and will not be overturned absent a showing of abuse of discretion. State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152 (2002), cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002). \u201cBy definition, all the essential elements of a lesser included offense are also elements of the greater offense.\u201d State v. Martin, 195 N.C. App. -, -, 671 S.E.2d 53, 61 (2009) (citing State v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987)). \u201c[A] lesser included offense requires no proof beyond that required for the greater offense, and the two crimes are considered identical for double jeopardy purposes.\u201d Id.\n[T]he definitions accorded the crimes determine whether one offense is a lesser included offense of another crime. In other, words, all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense. The determination is made on a definitional, not a factual basis.\nState v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378-79 (1982) (internal citations omitted), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993).\nThe elements of sexual battery are: (1) engaging in sexual contact with another person, (2) by force and against the will of the other person, and (3) for the purpose of sexual arousal, sexual gratification, or sexual abuse. N.C. Gen. Stat. \u00a7 14-27.5A (2007); see also N.C.P.I.-Crim. 207.90 (Jan. 2004).\nAssault is a statutory offense, but the statute contains no definition of the crime. See N.C. Gen. Stat. \u00a7 14-33(a) (2007). Assault is governed by common law. State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). Our Supreme Court has generally defined assault as: (1) an overt act or an attempt, or the unequivocal appearance of an attempt, (2) with force and violence, (3) to do some immediate physical injury to the person of another, (4) which would put a person of reasonable firmness in fear of immediate bodily harm. Id. (citations omitted). Emphasis is placed on the intent or state of mind of the accused. Id. Case law has also created another rule known as the \u201cshow of violence rule,\u201d which places the emphasis on the reasonable apprehension of the person assailed. Id.\nThe crime of assault possesses two elements which are not elements of sexu\u00e1l battery: (1) whether the accused committed or attempted to commit an act to do some immediate physical injury to the person of another, and (2) whether the act or attempted act would put a person of reasonable firmness in fear of immediate bodily harm. We hold that the crime of assault is not a lesser included offense of sexual battery because all the essential elements of assault are not essential elements of sexual battery.\nThis argument is without merit.\nBecause we hold that assault is not a lesser included offense of sexual battery, we do not address defendant\u2019s remaining arguments.\nDefendant has failed to argue the remaining assignments of error in his brief, and they are thus deemed abandoned pursuant to Rule 28(b)(6) of the Appellate Rules of Procedure. N.C.R. App. P. 28(b)(6).\nNO ERROR\nJudges BRYANT and ELMORE concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.", "Grace, Tisdale & Clifton, P.A., by Christopher R. Clifton, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WESLEY TYLER CORBETT\nNo. COA08-1300\n(Filed 21 April 2009)\nAssault\u2014 not a lesser included offense to sexual battery \u2014 additional elements\nAssault is not a lesser included offense to misdemeanor sexual battery; sexual battery does not include as essential elements an act or attempt to do immediate physical injury that would put a person of reasonable firmness in fear of immediate bodily harm.\nAppeal by defendant from judgment entered 6 February 2008 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 25 March 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.\nGrace, Tisdale & Clifton, P.A., by Christopher R. Clifton, for defendant-appellant." }, "file_name": "0508-01", "first_page_order": 536, "last_page_order": 540 }