                             NO. COA13-996

                 NORTH CAROLINA COURT OF APPEALS

                          Filed: 1 July 2014



STATE OF NORTH CAROLINA

    v.                                   Forsyth County
                                         Nos. 10 CRS 23850, 60721-22
                                              11 CRS 26360
COREY LAMONT MCCLAMB


    Appeal 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.


    Attorney General Roy Cooper, by Assistant Attorney General
    Sherri Horner Lawrence, for the State.

    David L. Neal for Defendant.


    STEPHENS, Judge.


                 Procedural History and Evidence

    On   11   July   2011,   Defendant    Corey   Lamont   McClamb   was

indicted on three counts of felony child abuse by sexual act

under N.C. Gen. Stat. § 14-318.4(a2); three counts of indecent

liberties with a child under N.C. Gen. Stat. § 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
                                          -2-
at least six years older than the victim under N.C. Gen. Stat. §

14-27.7A(a); and two counts of intercourse and sexual offense

with a child under N.C. Gen. Stat. § 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’s

relevant evidence tended to show the following:

        “Jane,”1 Defendant’s 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 “around [nine] or [ten].” When




1
    A pseudonym is used to protect the juvenile’s identity.
                                  -3-
Jane “turned [ten], [Defendant also] tried to put his penis in

[Jane’s] vagina, but it hurt, and he stopped.”

    When 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   “four   times   a   month.”

Approximately six months after arriving in Alabama, when Jane

was “around . . . [thirteen],” 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, “around [June

of 2009],” when Jane was fourteen years old, Defendant and Jane

moved into an apartment in Winston-Salem.

    Jane testified that “many 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].” Defendant engaged in

vaginal intercourse with Jane. This occurred for the first time

when Jane was fourteen years old. Defendant came into Jane’s

bedroom, made her perform oral sex on him, performed oral sex on

her, and “put his penis in [Jane’s] vagina.” Defendant would
                                    -4-
force Jane to have vaginal intercourse with him “[s]ix times a

month.” The vaginal intercourse took place in Jane’s bedroom, in

Defendant’s bedroom, and once in the living room. A forensics

expert for the State testified that Defendant’s semen was found

on Jane’s comforter. The sexual assault nurse examiner testified

that Jane’s vagina exhibited a tear, swelling, and redness that

was consistent with Jane’s testimony.

    Defendant   denied      molesting     or   raping   Jane.   He   testified

that his semen was likely on Jane’s comforter because Jane left

it in the living room, where Defendant “probably used [it] one

time” with one of his girlfriends.

    At   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
                                       -5-
2013, Defendant was sentenced to three consecutive terms of 456

months to 557 months incarceration. Defendant gave notice of

appeal in open court.

                                 Discussion

    The sole issue on appeal is whether the trial court erred

in denying Defendant’s 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 “legally be convicted” of the charge under

the trial court’s definition of sexual act. We disagree.

        “In 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.” N.C.R. App. P. 10(a)(3). “This Court reviews

the trial court’s denial of a motion to dismiss de novo.” State

v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).

               Upon [the] defendant’s 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’s being
               the perpetrator of such offense. If so, the
               motion is properly denied.

State    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
                                             -6-
150 (2000). “In 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.” 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).

        Defendant argues that the trial court erred in denying his

motion to dismiss because the term “sexual act” does not include

vaginal     intercourse         under       N.C.   Gen.    Stat.      §    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, “control[s] in the felony

child     abuse       by   sexual     act     cases    [under      Article        39].”    We

disagree.

        The relevant statutory provisions are as follows:

            ARTICLE 7A. RAPE AND OTHER SEX OFFENSES

            § 14-27.1. Definitions.

            As used in this Article, unless the context
            requires otherwise:

            . . . .
                     -7-


(4)   “Sexual    act”   means    cunnilingus,
fellatio, analingus, or anal intercourse,
but does not include vaginal intercourse.

. . . .

§ 14-27.2. First-degree rape.

(a) A person is guilty of rape in the first
degree if the person engages in vaginal
intercourse:

     (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

     (2) With another person by force and
     against the will of the other person,
     and:

          a. 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

          b.   Inflicts   serious  personal
          injury upon the victim or another
          person; or

          c. The person commits the offense
          aided and abetted by one or more
          other persons.

. . . .

§ 14-27.4. First-degree sexual offense.

(a) A person is guilty of a sexual offense
in the first degree if the person engages in
a sexual act:
                               -8-


               (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

               (2) With another person by force and
               against the will of the other person,
               and:

                    a. 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

                    b.   Inflicts   serious  personal
                    injury upon the victim or another
                    person; or

                    c. The person commits the offense
                    aided and abetted by one or more
                    other persons.

          . . . .

          ARTICLE 39. PROTECTION OF MINORS.

          . . . .

          § 14-318.4. Child abuse a felony.

          . . . .

          (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.

N.C. Gen. Stat. §§ 14-27.1(4), -27.2(a), -27.4(a), -318.4(a2)

(2013).
                                              -9-
     In response to Defendant’s argument, the State asserts that

vaginal intercourse is a part of the definition of “sexual act”

for the purposes of section 14-318.4(a2) because our holding in

Stokes “[does] not specifically address the issue of whether

. . . the statutory definition of [‘]sexual act[’] in [section]

14-27.1(4)    applies          to   Article     39     offenses.”        To   support    its

assertion, the State makes the following three arguments:

     First,        the        “legislature          clearly     indicated       that     the

definition of the term ‘sexual act’ under [section] 14-27.1(4)

applies     solely       to     offenses      . . .     within       Article      7[A]   by

including    the     language,          ‘as   used     in   this    Article,’      at    the

beginning of the statutory section defining terms for Article

7[A].” 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 “to distinguish rape from first and second degree sexual

offense   and      other       sexual     offense      references        within    Article

7[A].” As the State points out, “[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.” See generally State v. Lucas, 302 N.C.
                                            -10-
342,   346,     275    S.E.2d    433,      436    (1981)     (“The     only     sexual   act

excluded from the statutory 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 . . . .”). The State contends that while the need to

distinguish      between     a       “sexual      act”     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’s definition of

“aggravated      offense”       to     show      the   legislature’s       intention      to

include vaginal intercourse within the meaning of “sexual act”

for non-Article 7A offenses. That definition provides that an

aggravated offense includes “engaging in a sexual act involving

vaginal, anal, or oral penetration.” We fully agree with the

State’s position.

       We conclude that our holding in Stokes is controlling with

respect to the meaning of the term “sexual act” 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
                                           -11-
appeal,    we    addressed     whether       the    State      presented    sufficient

evidence that the defendant violated section 14-318.4(a2) when

he    digitally   penetrated        the    victim’s      vagina.    Id.    Citing    the

Article    7A     definition          of    “sexual      act,”      which       includes

penetration by any object into the genital opening of another

person’s   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.2

       Article 7A prefaces its list of definitions by clarifying

that such definitions are specific to Article 7A “unless context

requires otherwise.” N.C. Gen. Stat. § 14-27.1. In that article,

a    criminal    “sexual     act”     is    distinct     from    criminal       “vaginal

intercourse” 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



2
  This Court’s 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.
                                     -12-
be absurd to conclude — as Defendant’s interpretation of Stokes

would have us do — 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    “sexual   act,”      as    it   is    used   in

section    14-318.4(a2)      of     Article    39,   to        include     vaginal

intercourse. Accordingly, we find no error.

    NO ERROR.

    Judges BRYANT and DILLON concur.
