State v. Caldwell
| Decision Date | 19 May 1987 |
| Docket Number | No. 8630SC961,8630SC961 |
| Citation | 85 N.C.App. 713,355 S.E.2d 813 |
| Parties | STATE of North Carolina v. Ricky Lee CALDWELL. |
| Court | North Carolina Court of Appeals |
Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Robert E. Cansler, Raleigh, for the State.
Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender David W. Dorey, Raleigh, for defendant-appellant.
Defendant pleaded guilty to three counts of taking indecent liberties with children. The trial judge imposed the maximum ten year prison terms for two of the convictions and required that the sentences run consecutively. A three year term was imposed for the third conviction to run concurrently with the other terms for a total sentence of twenty years. Defendant appealed.
At the sentencing hearing, the State offered evidence tending to show defendant had sexually molested defendant's stepson and his stepson's cousin. While the two boys were staying with defendant and his wife during the summer of 1983, defendant got into bed with and fondled each boy. Among other things, the trial court found as an aggravating sentencing factor that defendant had taken advantage of a "position of trust or confidence" to commit the offenses under N.C.G.S. Sec. 15A-1340.4(a)(1)(n) (1983).
The only issue for this Court's determination is whether the aggravating sentencing factor under N.C.G.S. Sec. 15A-1340.4(a)(1)(n) requires the defendant abuse a position of greater "trust and confidence" than that inherent among family members whenever defendant is convicted of taking indecent liberties with such family members. In his brief, defendant admits "trust and confidence is inherent when an adult family member resides in the same home as the minors who are molested." He concedes the offense of indecent liberties with a child may legally occur between children and adult strangers. Defendant nevertheless asserts, without support, that the offense occurs most frequently in families.
From this jerry-built premise, defendant concludes that the "position of trust and confidence" inherent in a family context is a necessary element of this offense and is thus precluded as an aggravating factor pursuant to N.C.G.S. Sec. 15A-1340.4(a)(1) which provides that "evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation, and the same item of evidence may not be used to prove more than one factor in aggravation." Cf. State v. Young, 67 N.C.App. 139, 143-44, 312 S.E.2d 665, 660 (1984) (). Thus, defendant argues the "position of trust and confidence" required by Section 15A-1340.4(a)(1)(n) must be greater than that trust and confidence "inherent when an adult family member resides" with the victimized minor as in defendant's case.
We reject any contention that a parental or familial relationship is a necessary element of the crime of taking...
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State v. Arnold
...S.E.2d 149 (1984) (position of trust aggravating factor in sentencing for attempted rape of stepdaughter); see also State v. Caldwell, 85 N.C.App. 713, 355 S.E.2d 813 (1987) (position of trust aggravating factor in sentencing for taking indecent liberties with a minor, here stepson). Furthe......
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State v. Tucker
...This judgment was properly increased upon the finding of the aggravating factor of abusing a position of trust. See State v. Caldwell, 85 N.C.App. 713, 355 S.E.2d 813 (1987) (A familial relationship is not required for indecent liberties, and aggravating the sentence because defendant abuse......
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State v. Hughes, 9330SC659
...trial court erred in finding the position of trust factor in aggravation. This Court rejected the same argument in State v. Caldwell, 85 N.C.App. 713, 355 S.E.2d 813 (1987). Accordingly, we find no merit to defendant's Defendant next argues that the trial court erred in instructing the jury......