Even though the three-year-old victim only interacted with defendant in person on two occasions, the jury could find that he took advantage of a position of trust and confidence to commit a sex offense against her because the victim was very dependent on her mother, who was in a relationship with defendant.
We find no error in the trial court’s submission to the jury of the aggravating factor found in G.S. § 15A-1340.16(d)(15).
Defendant admitted that he asked the three-year-old victim’s mother to digitally penetrate the victim and that his penis went inside the victim’s mouth.
The victim’s mother testified that she had been in a relationship with defendant for over two years. She referred to him as her husband, and even discussed having children with him. The victim knew about her mother’s close relationship with defendant, as she specifically referred to him as her mother’s “boyfriend” when she reported defendant’s crimes against her.
Unlike in State v. Blakeman, 202 N.C. App. 259, 688 S.E.2d 525, disc. review denied, 364 N.C. 242, 698 S.E.2d 656 (2010), where the victim was 13 years old, the victim here was only three years old when defendant committed the offenses at issue against her. Because the victim was significantly younger than the victim in Blakeman, she was more dependent on her mother, who was her primary caregiver, and in a relationship with defendant.
Viewing the evidence in the light most favorable to the state, there is a permissible inference that because of the victim’s extreme reliance on her mother, the victim would trust and rely on her mother’s boyfriend of more than two years, even though the victim only interacted with defendant in person on two occasions. This evidence, in conjunction with the manner in which the crime was carried out, establishes the aggravating factor of abuse of “a position of trust or confidence” by a preponderance of the evidence, as defendant used his relationship with the victim’s mother to create a relationship with the victim, and, ultimately, as a reason to bring the victim to his parents’ home to sexually assault her.
We note that this holding is not based on the victim’s age. The aggravating factor that the defendant took advantage of a position of trust or confidence is grounded not in the youth of the child but more fundamentally in the child’s dependence. Here, the victim was inherently more vulnerable and inclined to trust her mother than an older victim may be because of her extreme dependency on her mother as her caretaker, who was singularly responsible for her welfare.
(Hunter, J.) The state’s evidence shows a relationship between the victim and her mother, but it fails to establish the same between the victim and defendant. I would remand for resentencing without consideration of the § 15A-1340.16(d)(15) aggravating factor.
State v. Helms (Lawyers Weekly No. 012-170-18, 12 pp.) (John Arrowood, J.) (Robert Hunter, J., dissenting) Appealed from Union County Superior Court (Christopher Bragg, J.) Erin Gibbs and Alexandra Gruber for the state; Ann Petersen for defendant. N.C. App. Unpub.