STATE OF NORTH CAROLINA
v. Wayne County
Nos. 00 CRS 51117
00 CRS 51118
00 CRS 51119
TRENTON CANTRELL
Attorney General Roy Cooper, by Assistant Attorney General Sue
Y. Little, for the State.
Benjamin M. Turnage, for defendant-appellant.
BRYANT, Judge.
Defendant pled guilty on 7 March 2001 to two counts of taking
indecent liberties. At the plea and sentencing hearing, the State
offered the confession of defendant in which defendant stated that
while babysitting the two victims, he touched and rubbed the
victims' genitals as they sat in his lap. The victims, fraternal
twins, were five years old at the time. The children also told
their parents and investigators that defendant had touched them in
their private areas.
In sentencing defendant, the court found as factors in
aggravation in each case that the victim was very young and that
defendant took advantage of a position of trust or confidence tocommit the offense. As factors in mitigation, the court found that
defendant voluntarily acknowledged wrongdoing at an early stage of
the criminal process, that defendant accepted responsibility for
his criminal conduct, and that defendant has a positive employment
history or is gainfully employed. The court found that the factors
in aggravation outweighed the factors in mitigation and imposed
consecutive active terms in the aggravated range of a minimum of
sixteen months and a maximum of twenty months.
Defendant contends that the court erred by finding as an
aggravating factor in each case that the victim was very young.
When age is an element of the offense, as here, the trial court may
find the victim's young age as a factor in aggravation if the
evidence, by its greater weight, shows that the age of the victim
caused the victim to be more vulnerable to being victimized. State
v. Farlow, 336 N.C. 534, 540, 444 S.E.2d 913, 917 (1994).
Defendant argues the evidence fails to show that the victims were
more vulnerable because of their age. We disagree.
A victim's age makes the victim more vulnerable when it
impedes the victim from fleeing, fending off attack, recovering
from its effects, or otherwise avoiding being victimized. State v.
Hines, 314 N.C. 522, 525, 335 S.E.2d 6, 8 (1985). The defendant
is considered more blameworthy or culpable because the victim's
young or old age makes it less likely that the victim will be able
to effectively intervene or defend himself. State v. Thompson, 318
N.C. 395, 398, 348 S.E.2d 798, 800 (1986). When the victim's age
is at or near the beginning of the age spectrum for an offensehaving age as an element, the prosecution may establish
vulnerability by merely relating the victim's age and the crime
committed. State v. Ahearn, 307 N.C. 584, 603, 300 S.E.2d 689, 701
(1983).
A defendant is guilty of taking indecent liberties if he or
she takes, or attempts to take, an indecent liberty with a child
under the age of sixteen years. N.C.G.S. § 14-202.1 (2001). The
age of five is near the beginning of the age spectrum for
commission of this offense. A five-year-old is also more likely,
as compared to an older child or teenager, to sit in the lap of an
adult male. While seated in the adult's lap, the child is less
able to flee from or resist the predatory touches of a lecherous
adult. The child, therefore, is more vulnerable to victimization.
We conclude the finding of the aggravating factor is supported
by the greater weight of evidence. We affirm the court's sentence.
No error.
Judges MARTIN and HUNTER concur.
Report per Rule 30(e).
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