Background

• Defendant Corey Lamont McClamb was indicted on multiple sex-related charges for sexual acts against his daughter (Jane), including three counts of felony child abuse by sexual act under N.C. Gen. Stat. § 14-318.4(a2).
• Allegations: repeated oral sex (cunnilingus and fellatio) beginning when Jane was a child and vaginal intercourse beginning when she was 14; semen from Defendant found on Jane’s comforter; medical exam showed vaginal tearing and inflammation.
• Defendant denied the assaults and offered an alternative explanation for the semen evidence.
• At trial the court defined “sexual act” to include vaginal intercourse; the jury convicted Defendant on 11 of 12 counts, including the three felony child abuse by sexual act counts.
• On appeal Defendant argued dismissal was required because the Article 7A statutory definition of “sexual act” (which excludes vaginal intercourse) should control, making vaginal intercourse not a “sexual act” for § 14-318.4(a2). The Court of Appeals reviewed denial of the motion to dismiss de novo.

Issues

Key Cases Cited

• State v. Smith, 186 N.C. App. 57 (discussing de novo review of denial of motion to dismiss)
• State v. Fritsch, 351 N.C. 373 (articulating the standard for denying motions to dismiss in criminal cases)
• State v. Rose, 339 N.C. 172 (instructing that trial court must view evidence in light most favorable to the State on dismissal review)
• State v. Stokes, 216 N.C. App. 529 (addressing digital penetration as a sexual act under Article 7A; Court clarifies Stokes did not decide whether Article 7A definition excludes vaginal intercourse under Article 39)
• State v. Lucas, 302 N.C. 342 (explaining Article 7A excludes vaginal intercourse from the Article 7A definition to avoid overlap with rape statutes)
• State v. Lark, 198 N.C. App. 82 (analyzing fellatio as a sexual act under Article 7A when applied in Article 39 prosecutions)