{ "id": 4749394, "name": "STATE OF NORTH CAROLINA v. BOBBY ALLEN RAINES", "name_abbreviation": "State v. Raines", "decision_date": "1987-04-07", "docket_number": "No. 427PA86", "first_page": "258", "last_page": "273", "citations": [ { "type": "official", "cite": "319 N.C. 258" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "344 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": -1 }, { "cite": "81 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522659 ], "year": 1986, "opinion_index": -1, "case_paths": [ "/nc-app/81/0299-01" ] }, { "cite": "340 S.E. 2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "708-09" } ], "opinion_index": 0 }, { "cite": "315 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717320 ], "year": 1986, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0444-01" ] }, { "cite": "447 U.S. 410", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185347 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/447/0410-01" ] }, { "cite": "433 U.S. 682", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181519 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/433/0682-01" ] }, { "cite": "432 U.S. 161", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177649 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/432/0161-01" ] }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "weight": 2, "year": 1932, "pin_cites": [ { "page": "304" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "324 S.E. 2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 300", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526623 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0300-01" ] }, { "cite": "124 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "841", "parenthetical": "double jeopardy principle regarded as integral part of \"law of the land\" clause of state constitution" } ], "opinion_index": 0 }, { "cite": "256 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573643 ], "year": 1962, "pin_cites": [ { "page": "496-97", "parenthetical": "double jeopardy principle regarded as integral part of \"law of the land\" clause of state constitution" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0494-01" ] }, { "cite": "270 S.E. 2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "301 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564463 ], "year": 1980, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0153-01" ] }, { "cite": "93 L.Ed. 2d 77", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "340 S.E. 2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "468-72" }, { "page": "472" } ], "opinion_index": 0 }, { "cite": "316 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694881 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "112-23" }, { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0111-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "325 S.E. 2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "188" } ], "opinion_index": 0 }, { "cite": "312 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758195 ], "year": 1985, "pin_cites": [ { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0669-01" ] }, { "cite": "92 L.Ed. 442", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "year": 1948, "pin_cites": [ { "page": "448" } ], "opinion_index": 0 }, { "cite": "333 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6156993 ], "year": 1948, "pin_cites": [ { "page": "25-26" } ], "opinion_index": 0, "case_paths": [ "/us/333/0018-01" ] }, { "cite": "18 L.Ed. 830", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 3455321 ], "year": 1868, "pin_cites": [ { "page": "832-33" } ], "opinion_index": 0, "case_paths": [ "/us/73/0385-01" ] }, { "cite": "346 S.E. 2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "317 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777604 ], "year": 1986, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0557-01" ] }, { "cite": "308 S.E. 2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "309 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765014 ], "year": 1983, "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0601-01" ] }, { "cite": "344 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522659 ], "year": 1986, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0299-01" ] }, { "cite": "266 S.E. 2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "300 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559928 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc/300/0150-01" ] }, { "cite": "254 S.E. 2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "297 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568581 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/297/0247-01" ] }, { "cite": "421 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541415 ], "weight": 4, "year": 1975, "opinion_index": 1, "case_paths": [ "/us/421/0684-01" ] }, { "cite": "121 P. 1006", "category": "reporters:state_regional", "reporter": "P.", "year": 1912, "opinion_index": 1 }, { "cite": "162 Cal. 248", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2034451 ], "year": 1912, "opinion_index": 1, "case_paths": [ "/cal/162/0248-01" ] }, { "cite": "80 Ariz. 82", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 650873 ], "weight": 2, "year": 1956, "opinion_index": 1, "case_paths": [ "/ariz/80/0082-01" ] }, { "cite": "48 Cal. Rptr. 562", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1966, "opinion_index": 1 }, { "cite": "239 Cal. App. 2d 181", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2161007 ], "year": 1966, "opinion_index": 1, "case_paths": [ "/cal-app-2d/239/0181-01" ] }, { "cite": "202 Mont. 327", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 2525494 ], "weight": 2, "year": 1983, "opinion_index": 1, "case_paths": [ "/mont/202/0327-01" ] }, { "cite": "47 N.C. 104", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681464 ], "year": 1854, "opinion_index": 1, "case_paths": [ "/nc/47/0104-01" ] }, { "cite": "10 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276984 ], "weight": 2, "year": 1824, "pin_cites": [ { "page": "216" } ], "opinion_index": 1, "case_paths": [ "/nc/10/0211-01" ] }, { "cite": "72 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 1 }, { "cite": "236 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622124 ], "year": 1952, "opinion_index": 1, "case_paths": [ "/nc/236/0001-01" ] }, { "cite": "158 S.E. 2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 1 }, { "cite": "272 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572856 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/nc/272/0312-01" ] }, { "cite": "157 S.E. 2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 1 }, { "cite": "272 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570652 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/nc/272/0067-01" ] }, { "cite": "140 S.E. 2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 1 }, { "cite": "263 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572645 ], "year": 1965, "opinion_index": 1, "case_paths": [ "/nc/263/0694-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/us/397/0358-01" ] } ], "analysis": { "cardinality": 1188, "char_count": 31003, "ocr_confidence": 0.806, "pagerank": { "raw": 4.1945497629368857e-07, "percentile": 0.9130354704077343 }, "sha256": "cdbfd7084de75b8266b11c99d62977736de91cd5b17cc40484782fbd177543f3", "simhash": "1:fe3f122660b199fe", "word_count": 5241 }, "last_updated": "2023-07-14T21:18:01.553874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices FRYE and WEBB join in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. BOBBY ALLEN RAINES" ], "opinions": [ { "text": "WHICHARD, Justice.\nThe State\u2019s evidence, in pertinent part, showed the following:\nThe victim suffered from migraine headaches so severe that \u201csometimes [she] would pass out, or most of the time [she] would be extremely . . . nauseated.\u201d On the morning of 13 July 1983 the victim went to the emergency room at St. Joseph\u2019s Hospital, a private hospital in Asheville, complaining of a migraine headache. She was placed in intensive care later that day when she experienced severe nausea and vomiting. She described her condition as \u201cstill vomiting severely and just too weak to move.\u201d She was \u201chooked up\u201d to both \u201can IV\u201d and a heart monitor.\nThe victim\u2019s husband visited her during the 7:00 p.m. visiting hour. She was vomiting severely at the time. Defendant, a charge nurse employed by the hospital in its intensive care unit, entered the room, administered a shot to the victim and told her it \u201cwould take care of [her] vomiting in about 10 minutes.\u201d\nThe victim\u2019s husband then left, and the next person the victim saw was defendant. Defendant gave her a back rub and left, but subsequently returned and gave her \u201can injection in [her] IV\u201d which caused a burning sensation. Approximately ten minutes later defendant returned, inserted his hand into the victim\u2019s vagina, and \u201cstarted pushing harder and harder.\u201d He tried to insert his penis \u201cbut it didn\u2019t go.\u201d He \u201cbegan to rock back and forth\u201d and in a few minutes ejaculated on the victim.\nDefendant later returned and administered another injection in the victim\u2019s \u201cIV.\u201d The victim felt the same burning sensation as before. Defendant left, returned a few minutes later, pulled the victim to the side of the bed, and \u201cinserted his penis.\u201d The victim testified: \u201c[T]his time it did go.\u201d Defendant \u201cbegan to rock back and forth again\u201d but was interrupted and left when someone called for him. He subsequently returned and sexually assaulted the victim again. She testified: \u201cHe inserted his penis into the vagina and rocked back and forth again for a while.\u201d\nVisual and microscopic examinations of the victim\u2019s nightgown and bedsheets revealed the presence of semen and spermatozoa. An SBI chemist examined the semen. He also examined blood samples from defendant, the victim\u2019s husband, and a respiratory therapist who had monitored the victim\u2019s oxygen on the night in question. The chemist testified that neither the victim\u2019s husband nor the therapist could have contributed the semen found on the victim\u2019s nightgown, but that defendant could have.\nDefendant testified, denying any sexual contact with the victim. He stated: \u201cI at no time touched [the victim] in any way that was improper or unprofessional.\u201d Other hospital personnel testified that they observed nothing unusual in or about the intensive care unit that night, and that nothing unusual was reported to them.\nThe jury returned verdicts of guilty of (1) engaging in vaginal intercourse with a person over whom defendant\u2019s employer had assumed custody, and (2) engaging in a sexual act with a person over whom defendant\u2019s employer had assumed custody. N.C.G.S. 14-27.7 (1986). Defendant appealed from judgments of imprisonment for four years on each count. The Court of Appeals found no error in the trial, but remanded for resentencing. This Court allowed discretionary review on 12 August 1986.\nFirst, defendant contends the trial court erred in denying his motions to dismiss and to set aside the verdict. He argues that the State failed to prove that his employer, St. Joseph\u2019s Hospital, had custody of the victim. We disagree.\nThe statute under which defendant was convicted provides:\n[I]f a person having custody of a victim of any age or a person who is an agent or employee of any person, or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age engages in vaginal intercourse or a sexual act with such victim, the defendant is guilty of a Class G felony. Consent is not a defense to a charge under this section.\nN.C.G.S. 14-27.7 (1986). Defendant contends that the custodial relationship, which is an element of the offense created by this statute, cannot exist between a private hospital and its patient because the patient voluntarily submits to the hospital\u2019s care and control and thus can leave or refuse treatment at any time. Defendant would limit the meaning of the word \u201ccustody,\u201d as used in the statute, to legal control or restraint.\nWe do not believe the General Assembly intended such a narrow construction. Words in a statute generally must be construed in accordance with their common and ordinary meaning, unless a different meaning is apparent or clearly indicated by the context. State v. Koberlein, 309 N.C. 601, 605, 308 S.E. 2d 442, 445 (1983). The ordinary meaning of the word \u201ccustody\u201d is not limited to legal control or restraint. The word\u2019s definitions include an aspect of care, preservation, and protection as well. See Burton, Legal Thesaurus 131 (1980) (\u201ccare, charge, control\u201d); Black\u2019s Law Dictionary 347 (5th ed. 1979) (the \u201ccare and control of a thing or person\u201d); Webster\u2019s New International Dictionary (3d ed. unabridged 1964) (the \u201cact or duty of guarding and preserving\u201d). Voluntary patients in a private hospital place themselves in the care, charge, and control of the institution. The normal role of the hospital is to guard, preserve, and restore the health of patients who are in its care, charge or control. We thus conclude that the ordinary meaning of the word \u201ccustody,\u201d in the context in which it is used here, applies to voluntary patients in a private hospital.\nAs further indication of legislative intent, we note that the statute expressly applies to \u201cany\u201d private institutions. Because patients in private institutions generally are voluntary admittees, the General Assembly must have intended \u2014 by the express, unlimited inclusion of such institutions \u2014 to extend the protection of the statute to those patients.\nFurther, the purpose of the statute \u2014 prevention of sexual abuse by institutional personnel of persons in an institution\u2019s care \u2014 is no less applicable, nor is such abuse of a position of trust less reprehensible, in a private hospital-voluntary patient context than otherwise. While voluntary patients in private hospitals may have the legal power to terminate their stay, in reality their physical freedom is normally restricted by the condition that motivated their admission. Such restraint is not dissimilar from that imposed on a penal institution inmate or an involuntarily committed patient. As stated by the Court of Appeals:\n[Voluntary patients need the protection that the statute provides no less than committed patients; for . . . while they remain as patients of a hospital they are as vulnerable as committed patients to abuse by employees who have ready access to their quarters and supply them with food, drink, medication, assistance, and other necessary care.\nState v. Raines, 81 N.C. App. at 302, 344 S.E. 2d at 140.\nIn adopting this construction we are not unmindful that \u201ccriminal statutes are to be strictly construed against the State.\u201d State v. Glidden, 317 N.C. 557, 561, 346 S.E. 2d 470, 472 (1986). However,\n[t]he object in construing penal, as well as other statutes, is to ascertain the legislative intent. . . . The words must not be narrowed to the exclusion of what the legislature intended to embrace. . . . When the words . . . include various classes of persons, there is no authority which would justify a court in restricting them to one class and excluding others, where the purpose of the statute is alike applicable to all. The proper course in all cases is to adopt that sense of the words which best harmonizes with the context, and promotes in the fullest manner the policy and object of the legislature. The rule of strict construction is not violated by permitting the words of [a] statute to have their full meaning, or the more extended of two meanings, . . . but the words should be taken in such a sense, bent neither one way nor the other, as will best manifest the legislative intent.\nUnited States v. Hartwell, 73 U.S. (6 Wall.) 385, 395-96, 18 L.Ed. 830, 832-33 (1868).\nThe canon in favor of strict construction [of criminal statutes] is not an inexorable command to override common sense and evident statutory purpose. . . . Nor does it demand that a statute be given the \u201cnarrowest meaning\u201d; it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers.\nUnited States v. Brown, 333 U.S. 18, 25-26, 92 L.Ed. 442, 448 (1948).\nWe conclude that to construe the word \u201ccustody,\u201d as used in N.C.G.S. 14-27.7, to apply to voluntary patients in a private hospital gives the word its \u201cfair meaning in accord with the manifest intent of the lawmakers.\u201d Id. We thus reject defendant\u2019s contention.\nOn a motion to dismiss for insufficiency of the evidence, the question for the trial court is whether there is substantial evidence of each element of the crime charged and of the defendant\u2019s perpetration of such crime. State v. Young, 312 N.C. 669, 680, 325 S.E. 2d 181, 188 (1985). The court must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. Id. Here the State presented uncontroverted evidence that the female victim was a patient at St. Joseph\u2019s Hospital at the time of the incidents alleged. She thus was in the hospital\u2019s \u201ccustody\u201d within the meaning and intent of that word as used in N.C.G.S. 14-27.7. There was also substantial evidence that defendant was an employee of the hospital and that he committed the sex acts alleged. The motions to dismiss and to set aside the verdict thus were properly denied. This assignment of error is overruled.\nSecond, defendant contends the trial court erred in instructing the jury that \u201c[a] medical hospital\u2019s housing of a patient would be custody.\u201d He argues that this instruction impermissibly relieved the State of its burden of proving beyond a reasonable doubt an essential element of the crime, viz, custody. See In re Winship, 397 U.S. 358, 25 L.Ed. 2d 368 (1970); State v. Torain, 316 N.C. 111, 112-23, 340 S.E. 2d 465, 468-72, cert. denied, --- U.S. ---, 93 L.Ed. 2d 77 (1986).\nWhile the presence or absence of custody is a question of fact, whether the hospital-patient relationship constitutes custody within the meaning and intent of N.C.G.S. 14-27.7 is one of law. We have held above that the legal conclusion stated in the instruction is correct. No presumption is created when the trial court fulfills its duty of declaring a matter of law. State v. Torain, 316 N.C. at 123, 340 S.E. 2d at 472. \u201cPresumptions may potentially arise only as to certain \u2018elemental\u2019 questions of fact and have no applicability to the trial court\u2019s resolution of questions of law.\u201d Id. This assignment of error is thus overruled.\nThird, defendant contends that his conviction violates the double jeopardy provisions of the fifth amendment to the United States Constitution and Article I, Section 19, of the North Carolina Constitution. See State v. Revelle, 301 N.C. 153, 162, 270 S.E. 2d 476, 481 (1980); State v. Birckhead, 256 N.C. 494, 496-97, 124 S.E. 2d 838, 841 (1962) (double jeopardy principle regarded as integral part of \u201claw of the land\u201d clause of state constitution). He argues that he had been tried previously for second-degree rape (N.C.G.S. 14-27.3) and second-degree sexual offense (N.C.G.S. 14-27.5) based on the incidents alleged in the indictment here. He was acquitted of second-degree rape but convicted of second-degree sexual offense. The Court of Appeals reversed the conviction, however, on the ground that there was no evidence of the essential element of force. State v. Raines, 72 N.C. App. 300, 324 S.E. 2d 279 (1985).\nTraditionally, the United States Supreme Court has applied what has been referred to as the Blockburger test in analyzing multiple offenses for double jeopardy purposes. The opinion in Blockburger v. United States, 284 U.S. 299, 304, 76 L.Ed. 306, 309 (1932), stated:\nThe applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.\nIf what purports to be two offenses actually is one under the Blockburger test, double jeopardy prohibits successive prosecutions, Brown v. Ohio, 432 U.S. 161, 53 L.Ed. 2d 187 (1977); Harris v. Oklahoma, 433 U.S. 682, 53 L.Ed. 2d 1054 (1977); Illinois v. Vitale, 447 U.S. 410, 65 L.Ed. 2d 228 (1980)\nState v. Gardner, 315 N.C. 444, 454, 340 S.E. 2d 701, 708-09 (1986). Second-degree rape and second-degree sexual offense require an act by force and against the will of another person. N.C.G.S. 14-27.3, -27.5 (1986). Custodial sexual offense does not. N.C.G.S. 14-27.7 (1986). Custodial sexual offense requires that the perpetrator, or the perpetrator\u2019s principal or employer, have custody of the victim. Id. Second-degree rape and second-degree sexual offense do not. N.C.G.S. 14-27.3, -27.5 (1986). Custodial sexual offense thus requires proof of a fact which second-degree rape and second-degree sexual offense do not, and both second-degree rape and second-degree sexual offense require proof of a fact which custodial sexual offense does not. Double jeopardy considerations thus are not implicated.\nDefendant argues that the trial court\u2019s instruction that \u201c[a] medical hospital\u2019s housing of a patient would be custody\u201d removes custody as an element of the custodial sexual offense, and thereby invokes double jeopardy principles. The argument is without merit. As held above, this instruction stated a matter of law; it did not remove the jury\u2019s duty to find the fact of custody. This assignment of error is overruled.\nFinally, the State, as appellee, argues pursuant to N.C.R. App. P. 16(a) that the Court of Appeals erred in remanding the case for resentencing. The trial court found as an aggravating factor that \u201c[t]he defendant took advantage of a position of trust or confidence to commit the offense.\u201d See N.C.G.S. 15A-1340.4(a)(l)(n) (1983). We agree that this was error. \u201cEvidence necessary to prove an element of the offense may not be used to prove any factor in aggravation . . . .\u201d N.C.G.S. 15A-1340.4(a) (1983). Under the facts here a showing of a relationship of trust and confidence was needed to prove the custodial element of the offense. The evidence that proved the aggravating factor thus was necessary to prove the custodial element of the offense, and the finding of the aggravating factor was proscribed by N.C.G.S. 15A-1340.4(a) (1983).\nFor the foregoing reasons, the decision of the Court of Appeals is affirmed. The case is remanded to that Court for further remand to the trial court for sentencing of the defendant not inconsistent with this opinion.\nAffirmed.", "type": "majority", "author": "WHICHARD, Justice." }, { "text": "Justice Martin\ndissenting.\nI.\nThe majority today decides that a voluntary patient in a private hospital is in the \u201ccustody\u201d of the hospital within the meaning of N.C.G.S. \u00a7 14-27.7. I cannot follow the majority in its tortured path to this conclusion and therefore dissent.\nAs the majority states, custody involves the control of a person. As the evidence in this case amply shows, St. Joseph\u2019s Hospital did not have control of the female prosecuting witness, either in law or in fact.\nQ. Now,, are you saying that you\u2019re familiar with the admission policies of St. Joseph\u2019s Hospital?\nA. Yes, sir.\nQ. Now, is a patient admitted, I believe you said by \u2014 only if a doctor recommends the patient?\nA. That\u2019s right.\nQ. When they go in a hospital, are they free to leave anytime they want to?\nA. Yes, they are.\nQ. Can they leave even against the doctor\u2019s orders or the nurse\u2019s orders?\nA. Yes, when a patient comes in he signs a consent for treatment, and any unusual treatment has to have a separate consent, and a patient can leave anytime he wants to or refuse any treatment.\nQ. Can he refuse medicines if he wants to?\nA. Yes.\nQ. Can he get up and walk out without any reason at all?\nA. If you want to do that.\nQ. Do you all have any control over them at all unless he wants it? Do you exercise any control\u2014\nA. We don\u2019t physically keep anyone in, no.\nQ. And you do nothing against his will, the patient\u2019s will, or her will?\nA. No. No.\nQ. Now, you do have \u2014One section of your hospital \u2014 Let\u2019s see, what floor is the intensive care unit on?\nA. It\u2019s on the 10th floor, the top floor.\nQ. Is that the only thing on that floor, or are there other things on that floor?\nA. Coronary care is up there and the stepdown unit is up there.\nQ. You do have one unit on one floor called Kingdom Hall, don\u2019t you?\nA. Yes, sir, on the 5th floor.\nQ. What kind of hall is that?\nA. That\u2019s a fourteen-bed psychiatric unit.\nQ. And that has nothing to do with the intensive care unit?\nA. No, sir, not at all.\nQ. It\u2019s a different \u2014 You do have some patients there that the hospital takes custody over?\nA. Within the last \u2014 well, just within this calendar year we have started taking some committed patients, but that\u2019s all.\nQ. Was [prosecuting witness] a committed patient?\nA. No, sir, we did not have any committed patients until this year.\nQ. Even Kingdom Hall didn\u2019t have any?\nA. No, they did not.\nQ. You just took patients who were having problems who wanted to come in voluntarily?\nA. Yes, they were all voluntary admissions.\nQ. Now, did you attempt in any way to require [prosecuting witness] or anybody else to do anything against their will?\nA. No, sir.\nQ. Did you at any time restrain [prosecuting witness] from leaving that hospital?\nA. No, sir.\nQ. She could have gotten up and walked out anytime she chose?\nA. Yes, sir, a patient can do that, except the committed ones.\nQ. And when she was in intensive care, was the hospital responsible for her care?\nA. Just the same as we\u2019re responsible for any patient\u2019s care.\nQ. Now, Mr. Brown asked you, I believe, if you didn\u2019t take charge of the care of this patient, [prosecuting witness], and I\u2019ll ask you if you didn\u2019t confine that just to her medical care?\nA. Yes, sir.\nQ. And even for medical care, she could either approve or disapprove of any procedure, is that right?\nA. Yes, sir, that\u2019s right.\nQ. And she could refuse any procedure or any medication?\nA. That\u2019s right. Any patient can do that.\nQ. And her will would prevail, rather than your will?\nA. Yes, sir.\nThe prosecuting witness testified:\nQ. What did the nurses do there in your room?\nA. They wanted to give me a bath.\nQ. Did you let them give you a bath at that time?\nA. No, I did not.\nQ. You saw no other nurse?\nA. I saw one when I was trying to leave the hospital, but I couldn\u2019t tell you who she was.\nAs the foregoing evidence demonstrates, assuming the majority is correct in extending the meaning of \u201ccustody,\u201d the record does not contain any evidence to support a jury finding that this victim was in custody at the time of the alleged events. The motion to dismiss should have been allowed on a factual basis.\nFurther, I do not agree that, as a matter of law, custody within the meaning of the statute includes a person who is a voluntary patient in a hospital, public or private. The majority opinion does not contain all the relevant parts of the statute. The entire statute follows:\nIf a defendant who has assumed the position of a parent in the home of a minor victim engages in vaginal intercourse or a sexual act with a victim who is a minor residing in the home, or if a person having custody of a victim of any age or a person who is an agent or employee of any person, or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age engages in vaginal intercourse or a sexual act with such victim, the defendant is guilty of a Class G felony. Consent is not a defense to a charge under this section.\nN.C.G.S. \u00a7 14-27.7 (1986). In determining the legislative intent with respect to the statute, it is noted that the statute opens with the reference to parent-child relationships and then proceeds to alternative custody positions. Thus it appears that the legislature first intended to protect children from those occupying a parental relationship and also other persons in similar custodial relationships. As the legislature did not define \u201ccustody\u201d as used in the statute, statutory interpretation would lead one to the conclusion that the legislature intended \u201ccustody\u201d to be of the same nature as the parent-child relationship. See State v. Fenner, 263 N.C. 694, 140 S.E. 2d 349 (1965). A voluntary patient in a private hospital certainly does not occupy a position in any way similar to that of a child with respect to its parent. As the evidence in this case shows, such patient is free to leave the hospital at any time regardless of the desires of the attending physician or the hospital; the patient can refuse any medical procedure or treatment; the patient can refuse the \u201ccare\u201d of the hospital (here the victim would not allow the nurses to give her a bath); the patient can exercise her own free will.\nOf course, criminal statutes must be strictly construed against the state. State v. Ross, 272 N.C. 67, 157 S.E. 2d 712 (1967). Criminal statutes must be liberally construed in favor of a defendant, with all conflicts resolved in favor of defendant. State v. Pinyatello, 272 N.C. 312, 158 S.E. 2d 596 (1968); State v. Scoggin, 236 N.C. 1, 72 S.E. 2d 97 (1952). Ordinary words in a statute are given their ordinary meaning. All of the majority\u2019s definitions of custody involve some aspect of control; this appears to be true in all definitions of custody \u2014 the institution must have control, either actual or legal, over the person. \u201cCustodial\u201d is defined in Webster\u2019s Ninth New Collegiate Dictionary at 318 as \u201cmarked by or given to watching and protecting rather than seeking to cure.\u201d This definition argues strongly that voluntary patients in hospitals are not in \u201ccustody.\u201d The statement in the majority\u2019s opinion that voluntary patients in a private hospital place themselves in the \u201ccare, charge, and control\u201d of the hospital is unsupported by any citation of authority and is contrary to all the evidence in this case. The evidence set forth above clearly shows that the prosecuting witness in this case had control of whether she would remain in the hospital, whether she would submit to treatment by the physicians and hospital, and whether she would submit to the care of the hospital. In truth, the evidence discloses that the hospital offered its services to her, even recommended certain medical treatment and care, but the patient had control of the decision of whether to submit to the care, treatment, and hospitalization itself. This is not \u201ccustody\u201d as used in the statute.\nIt is true, of course, that voluntary patients in hospitals must be protected from sexual assaults. They are provided that protection by N.C.G.S. \u00a7\u00a7 14-27.2 to .6, -33(a), (b)(l)-(3), -39, and numerous other statutes. Such patients are not left unprotected by construing this statute against the state.\nThe decisions of this Court and other jurisdictions support the conclusion that the victim in this case was not in custody. In Wilkes v. Slaughter, 10 N.C. 211 (1824), this Court held that \u201ccustody implies physical force sufficient to restrain the prisoner from going at large . . . .\u201d Id. at 216, overruled on other grounds, Currie v. Worthy, 47 N.C. 104 (1854).\nVoluntary hospital patients are not in \u201ccustody\u201d for Miranda purposes. State v. Lapp, 202 Mont. 327, 658 P. 2d 400 (1983); People v. Brice, 239 Cal. App. 2d 181, 48 Cal. Rptr. 562 (1966). The test applied in these cases was whether the hospital patient had been deprived of his freedom in any significant way. In Brice the court rejected the argument that where a patient was bedridden it was tantamount to being in custody.\nIn State v. Jackson, 80 Ariz. 82, 292 P. 2d 1075 (1956), the Arizona court, in interpreting \u201ccustody\u201d as used in a criminal statute where \u201ccustody\u201d was an essential element of the crime, held that in order to be in \u201ccustody\u201d the person must be under the control of and subject to the orders of another person. The Arizona court relied upon People v. Drake, 162 Cal. 248, 121 P. 1006 (1912), holding that custody implied being under the control of another, in some restraint so that the person is not free to come and go or otherwise act as he pleases.\nI conclude that the motion to dismiss should have been granted both because there was insufficient evidence to support a jury finding that the victim was in custody of the hospital and that as a matter of law \u201ccustody\u201d as used in the statute does not include a voluntary patient in a private hospital.\nII.\nI also dissent from the holding of the majority finding no error in the jury charge of the trial judge. In pertinent part, the trial judge charged the jury: \u201cSecond, that St. Joseph\u2019s Hospital had custody of [prosecuting witness]. Custody is the care, keeping or control of one person by another. A medical hospital\u2019s housing of a patient would be custody,\u201d and with respect to the sexual offense charge: \u201cSecond, the State must prove beyond a reasonable doubt that St. Joseph\u2019s Hospital had custody of [prosecuting witness]. Custody is the care, keeping or control of one person by another. A medical hospital\u2019s housing of a patient would be custody.\u201d\nThe elements of this offense are:\n1. The defendant had vaginal intercourse (or committed a sexual act) with the victim;\n2. The victim was then in the custody of (name institution);\n3. The defendant was an agent of the institution.\nN.C.P.I. \u2014 Crim. 207.70 (1986). The pattern jury instructions contain a footnote: \u201cIt [N.C.G.S. \u00a7 14-27.7] appears to be intended to make criminal all sexual activity of persons having legal custody, such as guardians, jailers or employees of mental institutions, with their wards.\u201d\nThe state has the burden to prove beyond a reasonable doubt as an element of the offense that the victim was in the custody of an institution at the time of the offense. See Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508 (1975); In re Winship, 397 U.S. 358, 25 L.Ed. 2d 368 (1970); State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604 (1979).\nThe trial judge\u2019s instructions went beyond even the majority\u2019s notion of the meaning of custody, telling the jury that housing of the victim by the hospital would be custody. In its final mandate to the jury, the trial court only required the jury to find that St. Joseph\u2019s Hospital was \u201chousing\u201d the victim as a patient in order to find that she was in the custody of the hospital. In so doing, the trial court erred. At the very least, under the majority\u2019s definition of custody, the jury would have to find that the victim was in the care, charge, and control of the hospital at the time in question. By failing to so do, the trial court improperly relieved the state of a part of its burden of proof, and defendant is entitled at least to a new trial. Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508. Failure to properly charge upon an essential feature of the case requires a new trial. State v. Ward, 300 N.C. 150, 266 S.E. 2d 581 (1980).\nOn the first issue the defendant is entitled to a dismissal of the charges. At the very least he is entitled to a new trial for the erroneous jury instruction.\nJustices FRYE and WEBB join in this dissenting opinion.", "type": "dissent", "author": "Justice Martin" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Elisha H. Bunting, Jr., Assistant Attorney General, for the State.", "Elmore & Powell, P.A., by Bruce A. Elmore, Sr. and Stephen P. Lindsay, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BOBBY ALLEN RAINES\nNo. 427PA86\n(Filed 7 April 1987)\n1. Rape and Allied Offenses \u00a7 1\u2014 custodial sexual offense \u2014 voluntary patient in private hospital\nAs used in the custodial sexual offense statute, N.C.G.S. \u00a7 14-27.7, the word \u201ccustody\u201d applies to voluntary patients in private hospitals.\n2. Rape and Allied Offenses \u00a7 5\u2014 custodial sexual offenses \u2014sufficiency of evidence\nThe State\u2019s evidence was sufficient to support defendant\u2019s convictions for engaging in vaginal intercourse with a person over whom defendant\u2019s employer had assumed custody and engaging in a sexual act with a person over whom defendant\u2019s employer had assumed custody where it tended to show that the female victim was a patient at a private hospital, defendant was employed as a charge nurse at the hospital, and defendant committed the sex acts alleged.\n3. Rape and Allied Offenses \u00a7 6\u2014 custodial sexual offense \u2014 instruction\u2014housing of hospital patient as custody\nIn a prosecution for engaging in vaginal intercourse and another sexual act with a person over whom defendant\u2019s employer had assumed custody, the trial court\u2019s instruction that \u201ca medical hospital\u2019s housing of a patient would be custody\u201d correctly stated a matter of law and did not remove the jury\u2019s duty to find the fact of custody.\n4. Criminal Law \u00a7 26.5\u2014 acquittal of rape and sexual offense \u2014 conviction of custodial sexual offenses \u2014 no double jeopardy\nWhere defendant was acquitted of second degree rape and his conviction of second degree sexual offense was reversed on appeal for lack of evidence of force, the subsequent conviction of defendant for offenses of engaging in vaginal intercourse and another sexual act with a person over whom defendant\u2019s employer had assumed custody based on the same incidents did not violate the double jeopardy provisions of the fifth amendment to the U. S. Constitution and Art. I, \u00a7 19 of the N. C. Constitution since custodial sexual offense requires proof of custody which second degree rape and second degree sexual offense do not require, and both second degree rape and second degree sexual offense require proof of an act of force which custodial sexual offense does not require.\n5. Criminal Law \u00a7 138.27\u2014 aggravating factor \u2014 position of trust or confidence\u2014 same evidence for two factors\nThe trial court erred in finding as an aggravating factor for custodial sexual offense that \u201cdefendant took advantage of a position of trust or confidence to commit the offense\u201d since the evidence that proved the aggravating factor was necessary to prove the custodial element of the offense, and the finding of the aggravating factor was proscribed by N.C.6.S. \u00a7 15A-1340.4(a).\nJustice Martin dissenting.\nJustices Frye and Webb join in this dissenting opinion.\nOn discretionary review of a decision of the Court of Appeals, 81 N.C. App. 299, 344 S.E. 2d 138 (1986), which found no error in defendant\u2019s trial, which resulted in convictions for (1) engaging in vaginal intercourse with a person over whom defendant\u2019s employer had assumed custody, and (2) engaging in a sexual act with a person over whom defendant\u2019s employer had assumed custody, both acts being found to violate N.C.G.S. 14-27.7. Judgment was entered by Lamm, J., at the 8 July 1985 Regular Criminal Term of Superior Court, BUNCOMBE County. Heard in the Supreme Court 9 February 1987.\nLacy H. Thornburg, Attorney General, by Elisha H. Bunting, Jr., Assistant Attorney General, for the State.\nElmore & Powell, P.A., by Bruce A. Elmore, Sr. and Stephen P. Lindsay, for defendant-appellant." }, "file_name": "0258-01", "first_page_order": 290, "last_page_order": 305 }