State v. Helms, ___ N.C. ___, 832 S.E.2d 897 (Sept. 27, 2019)

The defendant began a relationship with B.F. in 2012. The criminal offenses occurred in 2014, when B.F. brought her daughter L.F. (age 3 at the time) to the defendant’s parents’ house. While B.F. and L.F. were sitting on a bed with the defendant and watching a children’s television show, the defendant instructed B.F. to take off both her own and L.F.’s clothes, and she complied. At the defendant’s request, B.F. touched L.F. in a sexual manner while the defendant watched and masturbated. Afterwards, again at the defendant’s request, B.F. moved L.F. into a position where the defendant could place L.F.’s mouth on his penis. When L.F. later told her stepmother what had happened, the stepmother contacted law enforcement and social services, leading to an investigation and criminal charges. At trial, the defendant was convicted of two counts of engaging in a sex offense with a child under 13 years of age, and two counts of taking indecent liberties with a child. The jury also found that the state proved two aggravating factors: the victim was very young, and the defendant took advantage of a position of trust or confidence to commit the offense. On appeal, the defendant argued that there was insufficient evidence to support the second aggravating factor under G.S. 15A-1340.16(d)(15), because the only relationship involving a position of trust or confidence was between the defendant and B.F., rather than with the victim of the offense, L.F. The Supreme Court agreed, reversing the Court of Appeals, and held that the state’s evidence “failed to show that the relationship between L.F. and defendant was conducive to her reliance on him” and only established “that L.F. trusted defendant in the same way she might trust any adult acquaintance, a fact which our courts have found to be insufficient to support this aggravating factor.” Justice Newby dissented, and would have held that the aggravating factor was appropriate on these facts because the defendant took advantage of his position of trust or confidence with B.F. in order to facilitate the commission of the offense against L.F., and the statute does not require that the relationship be between the defendant and the victim.