{ "id": 12169348, "name": "STATE OF NORTH CAROLINA v. COREY LAMONT McCLAMB", "name_abbreviation": "State v. McClamb", "decision_date": "2014-07-01", "docket_number": "No. COA13-996", "first_page": "753", "last_page": "759", "citations": [ { "type": "official", "cite": "234 N.C. App. 753" } ], "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": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "678 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "698-99" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168425 ], "year": 2009, "pin_cites": [ { "page": "88-89" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0082-01" ] }, { "cite": "275 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "436", "parenthetical": "\"The only sexual act excluded from the statutoiy definition [in Article 7A] relates to vaginal intercourse, a necessary omission because vaginal intercourse is an element of the crimes of first and second degree rape . . . .\"" } ], "opinion_index": 0 }, { "cite": "302 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565531 ], "year": 1981, "pin_cites": [ { "page": "346", "parenthetical": "\"The only sexual act excluded from the statutoiy definition [in Article 7A] relates to vaginal intercourse, a necessary omission because vaginal intercourse is an element of the crimes of first and second degree rape . . . .\"" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0342-01" ] }, { "cite": "N.C. 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Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9564641, 9565507, 9564931, 9565413, 9565127, 9565834, 9565727, 9565933, 9565644, 9565235, 9564441, 9564731, 9564539, 9564829, 9565023 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/0890-03", "/us/531/0890-11", "/us/531/0890-06", "/us/531/0890-10", "/us/531/0890-08", "/us/531/0890-14", "/us/531/0890-13", "/us/531/0890-15", "/us/531/0890-12", "/us/531/0890-09", "/us/531/0890-01", "/us/531/0890-04", "/us/531/0890-02", "/us/531/0890-05", "/us/531/0890-07" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "186 N.C. 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Stat.", "weight": 2, "pin_cites": [ { "page": "(a2)" }, { "page": "(a2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 622, "char_count": 14026, "ocr_confidence": 0.739, "pagerank": { "raw": 6.702469334226361e-08, "percentile": 0.4073478801273742 }, "sha256": "d4f09be96541051244d18129abb2ebb928efe6e1f449335de51aba0502f43326", "simhash": "1:6762748a18ca5c4a", "word_count": 2327 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and DILLON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. COREY LAMONT McCLAMB" ], "opinions": [ { "text": "STEPHENS, Judge.\nProcedural History and Evidence\nOn 11 July 2011, Defendant Corey Lamont McClamb was indicted on three counts of felony child abuse by sexual act under N.C. Gen. Stat. \u00a7 14-318.4(a2); three counts of indecent liberties with a child under N.C. Gen. Stat. \u00a7 14-202.1; one count of statutory rape or sexual offense of a person who is thirteen, fourteen, or fifteen years old when the perpetrator is at least six years older than the victim under N.C. Gen. Stat. \u00a7 14-27.7A(a); and two counts of intercourse and sexual offense with a child under N.C. Gen. Stat. \u00a7 14-27.7(a). The first count of felony child abuse by sexual act was based on vaginal intercourse, the second count was based on cunnilingus, and the third count was based on fellatio. On 6 February 2012, Defendant was indicted under section 14-27.7A(a) on one additional count of statutory rape or sexual offense of a person who is thirteen, fourteen, or fifteen years old when the perpetrator is at least six years older than the victim and two counts of intercourse and sexual offense with a child under section 14-27.7(a). The case came on for trial on 4 February 2013. At trial, the State\u2019s relevant evidence tended to show the following:\n\u201cJane,\u201d Defendant\u2019s biological daughter, began living with Defendant at his residence in Alabama when she was eight years old and Defendant was approximately thirty-three years old. While Jane was there, Defendant made her perform oral sex on him. According to Jane, this occurred four or five times a month. Additionally, Defendant once kissed Jane by putting his tongue in her mouth when she was \u201caround [nine] or [ten].\u201d When Jane \u201cturned [ten], [Defendant also] tried to put his penis in [Jane\u2019s] vagina, but it hurt, and he stopped.\u201d\nWhen Jane was eleven or twelve, Defendant sent her to live with his great aunt in Georgia. At the end of the school year, Defendant retrieved Jane from Georgia and brought her back to his residence in Alabama. When Jane returned, Defendant made her perform oral sex on him roughly \u201cfour times a month.\u201d Approximately six months after arriving in Alabama, when Jane was \u201caround . . . [thirteen],\u201d Defendant sent Jane to Winston-Salem, North Carolina to live with his friend. About a year later, Defendant joined Jane in Winston-Salem, and they moved to a homeless shelter. Roughly six months after that, \u201caround [June of 2009],\u201d when Jane was fourteen years old, Defendant and Jane moved into an apartment in Winston-Salem.\nJane testified that \u201cmany times ... at night [in the new Winston-Salem residence, Defendant] came into [her] room, and [Defendant] made [her] perform oral sex on [him], [Defendant would also perform] oral sex on [her].\u201d Defendant engaged in vaginal intercourse with Jane. This occurred for the first time when Jane was fourteen years old. Defendant came into Jane\u2019s bedroom, made her perform oral sex on him, performed oral sex on her, and \u201cput his penis in [Jane\u2019s] vagina.\u201d Defendant would force Jane to have vaginal intercourse with him \u201c[s]ix times a month.\u201d The vaginal intercourse took place in Jane\u2019s bedroom, in Defendant\u2019s bedroom, and once in the living room. A forensics expert for the State testified that Defendant\u2019s semen was found on Jane\u2019s comforter. The sexual assault nurse examiner testified that Jane\u2019s vagina exhibited a tear, swelling, and redness that was consistent with Jane\u2019s testimony.\nDefendant denied molesting or raping Jane. He testified that his semen was likely on Jane\u2019s comforter because Jane left it in the living room, where Defendant \u201cprobably used [it] one time\u201d with one of his girlfriends.\nAt the close of all the evidence, Defendant moved to dismiss the charges against him, including the three counts of felony child abuse by sexual act. The trial court denied the motion. After closing arguments, the trial court instructed the jury on felonious child abuse by sexual act and defined sexual act to include vaginal intercourse. Following deliberations, the jury found Defendant guilty on eleven of the twelve charges and returned no verdict on one count of statutory rape. Except for the three charges of felony child abuse by a sexual act, the jury also found that Defendant abused a position of trust or confidence in the commission of these crimes. On 11 February 2013, Defendant was sentenced to three consecutive terms of 456 months to 557 months incarceration. Defendant gave notice of appeal in open court.\nDiscussion\nThe sole issue on appeal is whether the trial court erred in denying Defendant\u2019s motion to dismiss as it pertains to the single charge of felony child abuse by a sexual act based on vaginal intercourse. Defendant argues that the court erred because he could not \u201clegally be convicted\u201d of the charge under the trial court\u2019s definition of sexual act. We disagree.\n\u201cIn a criminal case, a defendant may not make insufficiency of the evidence to prove the crime charged the basis of an issue presented on appeal unless a motion to dismiss the action... is made at trial.\u201d N.C.R. App. P. 10(a)(3). \u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo.\u201d State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).\nUpon [the] defendant\u2019s motion for dismissal, the question for the [appellate c]ourt is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\nState v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). \u201cIn making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).\nDefendant argues that the trial court erred in denying his motion to dismiss because the term \u201csexual act\u201d does not include vaginal intercourse. under N.C. Gen. Stat. \u00a7 14-318.4(a2). Specifically, Defendant asserts that we are bound by our determination in State v. Stokes, 216 N.C. App. 529, 532, 718 S.E.2d 174, 176-77 (2011), that the definition of sexual act in Article 7A, section 14-27.1(4), which explicitly excludes vaginal intercourse as a sexual act, \u201ccontrol[s] in the felony child abuse by sexual act cases [under Article 39].\u201d We disagree.\nThe relevant statutory provisions are as follows:\nARTICLE 7A. RAPE AND OTHER SEX OFFENSES \u00a7 14-27.1. Definitions.\nAs used in this Article, unless the context requires otherwise:\n(4) \u201cSexual act\u201d means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse.\n\u00a7 14-27.2. First-degree rape.\n(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:\n(1) With a victim who is a child under the age of [thirteen] years and the defendant is at least [twelve] years old and is at least four years older than the victim; or\n(2) With another person by force and against the will of the other person, and:\na. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon; or\nb. Inflicts serious personal injury upon the victim or another person; or\nc. The person commits the offense aided and abetted by one or more other persons.\n\u00a7 14-27.4. First-degree sexual offense.\n(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:\n(1) With a victim who is a child under the age of [thirteen] years and the defendant is at least [twelve] years old and is at least four years older than the victim; or\n(2) With another person by force and against the will of the other person, and:\na. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon; or\nb. Inflicts serious personal injury upon the victim or another person; or\nc. The person commits the offense aided and abetted by one or more other persons.\nARTICLE 39. PROTECTION OF MINORS.\n14-318.4. Child abuse a felony.\n(a2) Any parent or legal guardian of a child less than [sixteen] years of age who commits or allows the commission of any sexual act upon the child is guilty of a Class D felony.\nN.C. Gen. Stat. \u00a7\u00a7 14-27.1(4), -27.2(a), -27.4(a), -318.4(a2) (2013).\nIn response to Defendant\u2019s argument, the State asserts that vaginal intercourse is a part of the definition of \u201csexual act\u201d for the purposes of section 14-318.4(a2) because our holding in Stokes \u201c[does] not specifically address the issue of whether... the statutory definition of [\u2018]sexual act[\u2019] in [section] 14-27.1(4) applies to Article 39 offenses.\u201d To support its assertion, the State makes the following three arguments:\nFirst, the \u201clegislature clearly indicated that the definition of the term \u2018sexual act\u2019 under [section] 14-27.1(4) applies solely to offenses ... within Article 7[A] by including the language, \u2018as used in this Article,\u2019 at the beginning of the statutory section defining terms for Article 7[A].\u201d Second, incorporation of an Article 7A definition into Article 39 is contrary to legislative intent because the reason to distinguish sexual act from vaginal intercourse in Article 7A is \u201cto distinguish rape from first and second degree sexual offense and other sexual offense references within Article 7[A].\u201d As the State points out, \u201c[t]he usage of the two terms indicates that the [General Assembly] intended such a distinction under Article 7[A] to reduce the possibility of confusion between vaginal intercourse for rape and a sexual act for a sexual offense.\u201d See generally State v. Lucas, 302 N.C. 342, 346, 275 S.E.2d 433, 436 (1981) (\u201cThe only sexual act excluded from the statutoiy definition [in Article 7A] relates to vaginal intercourse, a necessary omission because vaginal intercourse is an element of the crimes of first and second degree rape . . . .\u201d). The State contends that while the need to distinguish between a \u201csexual act\u201d and vaginal intercourse exists when punishing rape and other sexual offenses differently, the distinction is not necessary where one statute is designed to punish the sexual abuse of children in its entirety. Third, the State points to Article 27A\u2019s definition of \u201caggravated offense\u201d to show the legislature\u2019s intention to include vaginal intercourse within the meaning of \u201csexual act\u201d for non-Article 7A offenses. That definition provides that an aggravated offense includes \u201cengaging in a sexual act involving vaginal, anal, or oral penetration.\u201d We fully agree with the State\u2019s position.\nWe conclude that our holding in Stokes is controlling with respect to the meaning of the term \u201csexual act\u201d as used in section 14-318.4(a2) only in light of the narrow factual circumstances and legal issue raised therein. The defendant in Stokes was charged with violating section 14-318.4(a2) of Article 39. 216 N.C. App. at 532, 718 S.E.2d at 176-77. On appeal, we addressed whether the State presented sufficient evidence that the defendant violated section 14-318.4(a2) when he digitally penetrated the victim\u2019s vagina. Id. Citing the Article 7A definition of \u201csexual act,\u201d which includes penetration by any object into the genital opening of another person\u2019s body, we concluded that digital vaginal penetration constitutes a sexual act. See id. We did not hold, however, that the Article 7A definition of sexual act applies to exclude vaginal intercourse as a sexual act under Article 39. That question simply was not present in Stokes\nArticle 7A prefaces its list of definitions by clarifying that such definitions are specific to Article 7A \u201cunless context requires otherwise.\u201d N.C. Gen. Stat. \u00a7 14-27.1. In that article, a criminal \u201csexual act\u201d is distinct from criminal \u201cvaginal intercourse\u201d because vaginal intercourse is separately addressed in the context of rape. No such distinction exists in Article 39. There is no separate provision involving vaginal intercourse and, thus, no need for any such distinction. Moreover, it would be absurd to conclude \u2014 as Defendant\u2019s interpretation of Stokes would have us do \u2014 that a parent or guardian who engaged in anal intercourse with a child less than 16 years old, for example, would be guilty of felony child abuse under section 14-318.4(a2) while a parent or guardian who engaged in vaginal intercourse would not be guilty. Therefore, we hold that the General Assembly intended the term \u201csexual act,\u201d as it is used in section 14-318.4(a2) of Article 39, to include vaginal intercourse. Accordingly, we find no error.\nNO ERROR.\nJudges BRYANT and DILLON concur.\n. A pseudonym is used to protect the juvenile\u2019s identity.\n. This Court\u2019s discussion in State v. Lark, 198 N.C. App. 82, 88-89, 678 S.E.2d 693, 698-99 (2009), is similarly limited to an analysis of fellatio as a sexual act under the Article 7A definition when applied to an Article 39 prosecution. Lark likewise does not address whether vaginal intercourse constitutes a sexual act under Article 39.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Sherri Homer Lawrence, for the State.", "David L. Neal for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. COREY LAMONT McCLAMB\nNo. COA13-996\nFiled 1 July 2014\nChild Abuse, Dependency, and Neglect\u2014felony child abuse by sexual act\u2014vaginal intercourse\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of felony child abuse by a sexual act based on vaginal intercourse. Contrary to defendant\u2019s assertion, the General Assembly intended the term \u201csexual act,\u201d as it is used in N.C.G.S. \u00a7 14-318.4(a2) of Article 39, to include vaginal intercourse.\nAppeal by Defendant from Judgments entered 11 February 2013 by Judge C. W. Bragg in Forsyth County Superior Court. Heard in the Court of Appeals 19 February 2014.\nAttorney General Roy Cooper, by Assistant Attorney General Sherri Homer Lawrence, for the State.\nDavid L. Neal for Defendant." }, "file_name": "0753-01", "first_page_order": 763, "last_page_order": 769 }