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State of North Carolina v. Jacobs

February 17, 1998

STATE OF NORTH CAROLINA
v.
HERBERT MELTON JACOBS



Appeal by defendant from judgments entered 28 May 1996 by Judge Ronald K. Payne in Gaston County Superior Court. Heard in the Court of Appeals 9 October 1997.

The opinion of the court was delivered by: Martin, John C., Judge.

Defendant was indicted on 6 June 1994 upon four counts of second degree sexual offense, four counts of taking indecent liberties with a minor, and one count of crime against nature. The offenses were alleged to have occurred at various times between 1 June 1980 and 30 September 1983. The alleged victims were Kelly Collins and Glenn Clark, both of whom were alleged to have been under the age of 16 years at the time. Defendant entered pleas of not guilty.

The State offered evidence tending to show that defendant, who was more than thirty years of age, was a Boy Scout scoutmaster in Gastonia when Glenn Clark, then twelve years of age, joined his scout troop in November 1979. Kelly Collins became involved in defendant's scout troop in 1981, when he was twelve years old. Both Collins and Clark testified they were small for their age.

Briefly summarized, Collins testified that he looked up to defendant as a father figure. Defendant often invited Collins to defendant's apartment, or took him to movies, swimming, or to play putt- putt golf. Collins testified that on several occasions, he spent the night at defendant's apartment and that defendant came into the room where he was sleeping and kissed him, rubbed him and fondled his penis with his hand. After defendant moved from the apartment to a house, Collins spent the night with defendant. During the night, defendant came into the room where Collins was sleeping, removed his shorts, and performed fellatio on him. Collins testified that he was afraid and did not tell anyone about the incidents at the time. He quit the Boy Scouts when he was fifteen. After Collins was in college, he confided in his girlfriend and a track coach about the incidents.

Clark testified that defendant often invited him over to his apartment or his house and often served him alcoholic beverages. On one occasion, defendant played a game with him which required Clark to remove articles of clothing, after which defendant fondled his penis and performed fellatio on him. Clark testified about several other occasions, involving both scouting activities and visits to defendant's apartment and house, when defendant engaged in similar conduct, fondling him and performing fellatio on him. On two occasions, one in June or July of 1983 and the other in September of 1983, defendant had forcible anal intercourse with Clark at defendant's house.

The State also offered the testimony of three other witnesses, Steven Johnson, Brian Thomas and Paul Lyman, who testified that defendant had also been their scoutmaster. They described various incidents in which defendant had engaged in similar conduct with them when they were young teenagers.

Defendant offered the testimony of Mary Cook, a social worker who had investigated defendant to determine his suitability to adopt a child. Ms. Cook testified that she had made several visits to defendant's home, including surprise visits, and had never observed any unusual conduct. She approved him for adoption. Several of defendant's former scout troop members testified that they had often spent the night at defendant's residence on weekends and had neither experienced nor observed any inappropriate sexual behavior. In addition, defendant offered testimony of parents of former scouts, as well as other scout leaders, to the effect that they had never observed any inappropriate behavior on defendant's part. Finally, defendant's adopted son testified that he had never been sexually abused by defendant.

The jury found defendant guilty of three counts of second degree sexual offense, one count of crime against nature, and three counts of taking indecent liberties with a minor. He appeals from judgments imposing active terms of imprisonment totaling seventy-seven years.

In his brief, defendant has presented arguments in support of the questions raised by eight of the twenty-five assignments of error contained in the record on appeal. Pursuant to N.C.R. App. P. 28(a) defendant's remaining seventeen assignments of error are deemed abandoned. We have carefully considered defendant's arguments and find no prejudicial error in his trial.

I.

Defendant first argues that the trial court erred in denying his motion to dismiss because there was insufficient evidence of force to support the charges of second degree sexual offense by fellatio. G.S. § 14-27.5 provides in pertinent part: (a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:

(1) By force and against the will of the other person.

Fellatio is included as a sexual act within the meaning of the statute. State v. Baker, 333 N.C. 325, 426 S.E.2d 73, disc. review denied, 334 N.C. 435, 433 S.E.2d 180 (1993). The phrase "by force and against the will of the other person" has the same meaning here as it does in the context of rape. State v. Locklear, 304 N.C. 534, 284 S.E.2d 500 (1981). The force required "need not be physical force. Fear, fright, or coercion may take the place of force." Id. at 539, 284 S.E.2d at 503.

On a motion to dismiss the court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. State v. Ethridge, 319 N.C. 34, 352 S.E.2d 673 (1987). The Judge must decide if there is substantial evidence of each element of the offenses charged. Id. "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a Conclusion." Id. at 47, 352 S.E.2d at 681. When substantial evidence supports a finding that the crime was committed, and that a defendant is the criminal agent, the case must be ...


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