Actual physical force "is present if the defendant uses force sufficient to overcome any resistance the victim might make." State v. Brown, 332 N.C. 262, 267, 420 S.E.2d 147, 150 (1992) (citations omitted). We address each charge in turn.
Further, the Court of Appeals stated that the element of force in the sexual battery statute was defined as "force applied to the body," id. at 7 (quoting State v. Scott , 323 N.C. 350, 354, 372 S.E.2d 572 (1988) ), and that element was "present if the defendant use[d] force sufficient to overcome any resistance the victim might make." Id. (quoting State v. Brown , 332 N.C. 262, 267, 420 S.E.2d 147 (1992) ). The Court of Appeals did not address the juvenile's arguments concerning sufficiency of the evidence or the contents of the trial court's disposition order; however, the case was remanded to the trial court for an evidentiary hearing on the ineffective assistance of counsel claim.
However, it consistently cites this passage in Locklear for this proposition. See, e.g., State v. Brown , 332 N.C. 262, 267, 420 S.E.2d 147, 150 (1992) (citing Locklear , 304 N.C. at 539, 284 S.E.2d at 503 ); Etheridge at 45, 352 S.E.2d at 680 (citing Locklear , 304 N.C. 534, 284 S.E.2d 500 ). Moreover, the Supreme Court in those cases continued to discuss force as a discrete element and to cite Alston as precedent.
The actual force element “is present if the defendant uses force sufficient to overcome any resistance the victim might make.” State v. Brown, 332 N.C. 262, 267, 420 S.E.2d 147, 150 (1992) (citations omitted; emphasis added). With regard to the offense of rape, our courts have historically
¶ 50 Instead, the State argues that this Court should follow other jurisdictions that have construed the essential element of "force" to include "constructive force." See State v. Brown (N.C. 1992), 420 S.E.2d 147, 150 (stating that the "requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion") (citation omitted). ¶ 51 Contrary to the State's argument, however, Montana's statutory scheme accounts for "constructive force" pursuant to the amended version of § 45-5-501(2), MCA (amended in 1991), which provides that "force" includes threats of bodily injury or "substantial retaliatory action."
" ‘Physical force’ means force applied to the body," State v. Scott , 323 N.C. 350, 354, 372 S.E.2d 572, 575 (1988) (citation omitted), and "is present if the defendant uses force sufficient to overcome any resistance the victim might make." State v. Brown , 332 N.C. 262, 267, 420 S.E.2d 147, 150 (1992) (citations omitted). "Constructive force is demonstrated by proof of threats or other actions by the defendant which compel the victim's submission to sexual acts."
The North Carolina Supreme Court has noted that "constructive force may be demonstrated by evidence of threats or other actions by the defendant which compel the victim's submission to sexual acts, and such threats `need not be explicit so long as the totality of the circumstances allows a reasonable inference that such compulsion was the unspoken purpose of the threat.'" North Carolina v. Penland, 343 N.C. 634, 472 S.E.2d 734, 742 (1996) (quoting Etheridge, 352 S.E.2d at 680); accord North Carolina v. Brown, 332 N.C. 262, 420 S.E.2d 147, 150 (1992). In this case, the adult-child relationship between the defendant and the victim permits the inference of constructive force.
The force element of second-degree rape and second-degree sexual offense is present if the defendant "uses force sufficient to overcome any resistance the victim might make." State v. Brown , 332 N.C. 262, 267, 420 S.E.2d 147, 150 (1992). Force may be established either by "actual, physical force" or by "constructive force in the form of fear, fright, or coercion."
The element of "by force and against the will of the other person" is present where there is evidence of force "sufficient to overcome any resistence the victim might make." State v. Brown, 332 N.C. 262, 267, 420 S.E.2d 147, 150 (1992). "The requisite force may be established either by actual physical force or by constructive force in the form of fear, fright, or coercion."
The element of "[b]y force and against the will of the other person" used in the second-degree rape statute is present where there is evidence of force "sufficient to overcome any resistence the victim might make." State v. Brown, 332 N.C. 262, 267, 420 S.E.2d 147, 150 (1992). "The requisite force may be established either by actual physical force or by constructive force in the form of fear, fright, or coercion."