State v. Wright

MARTIN, Judge.

Defendant assigns error to the' court’s failure to grant defendant’s motion for nonsuit as to the charge of attempted crime against nature.

“It is elementary that upon such a motion the trial judge is required to take the evidence for the State as true, to give to the State the benefit of every reasonable inference to be drawn therefrom and to resolve in the favor of the State all conflicts, if any, therein.” State v. Edwards, 286 N.C. 140, 209 S.E. 2d. 789 (1974).

According to the court in State v. Harward, 264 N.C. 746, 142 S.E. 2d 691 (1965) :

“The crime against nature is sexual intercourse contrary to the order of nature. It includes acts with animals and acts between humans per anum and per os. (Citation) ‘. . . our statute is broad enough to include in the crime against nature other forms of the offense than sodomy and buggery. It includes all kindred acts of a bestial character whereby degraded and perverted sexual desires are sought to be gratified.’ (Citation) ‘Proof of penetration of or by the sexual organ is essential to conviction.’ (Citation).”

However, penetration is not necessary to convict for the offense of attempted crime against nature. “An attempt to commit a crime is an overt act in partial execution of the crime which falls short of actual commission but which goes beyond mere preparation to commit.” State v. Chance, 3 N.C. App. 459, 165 S.E. 2d 31 (1969).

The evidence shows that the defendant exposed his private parts, reached three or four times for the groin area of the child, kissed him on the lips three times, and asked twice if he would perform unnatural sex acts with him. These acts of the defendant were directed toward the commission of an unnatural sex act with the child and showed an intent on his part to commit such an unnatural sex act. Taking this evidence in the light most favorable to the State, there was ample evidence to go to the jury on the charge of attempted crime against nature. This assignment of error is overruled.

Defendant’s other assignments of error are without merit.

No error.

Chief Judge Bkock and Judge Vaughn concur.