The opinion
PHILLIPS, Judge.
Defendant makes three contentions in regard to his convictions — that the evidence was insufficient to prove his guilt of the crimes he was tried for; that the court erred in instructing the jury; and that because of the earlier trial this prosecution is barred by the double jeopardy clauses of the Fifth Amendment to the United States Constitution and Article One, Section 19 of the North Carolina Constitution. None of these contentions have merit and we overrule them.
As to defendant’s double jeopardy pleas his contention is that the offenses he was convicted of are lesser included offenses of the crimes that he was acquitted of in the previous case and thus within the ambit of the Fifth Amendment under the rule laid down in
Brown v. Ohio,
432 U.S. 161 , 53 L.Ed. 2d 187 , 97 S.Ct. 2221 (1977) and
Blockburger v. United States,
284 U.S. 299 , 76 L.Ed. 306 , 52 S.Ct. 180 (1932). While the rule there laid down is as defendant states it, it does not apply to this case inasmuch as the offenses that defendant was convicted of are not lesser included offenses of the crimes that he was earlier tried for. This is because each of the crimes defendant was convicted of has essential elements — that defendant was an employee and his employer had custody of the alleged victim — that neither second degree rape, G.S. 14-27.3, nor committing a sex act in violation of G.S. 14-27.5 have. Thus the former trial did not put defendant in jeopardy of being convicted of the custodial offenses that are the basis for this case and the constitutional provisions relied upon do not apply.
State v.
Revelle, 301 N.C. 153 , 270 S.E. 2d 476 (1980).
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Defendant’s position as to the insufficiency of the evidence is that the State failed to prove the hospital had “custody” of Mrs. Grindstaff, as the indictment alleged and G.S. 14-27.7 requires. In pertinent part, G.S. 14-27.7 provides:
. . . [I]f a person having custody of a victim of any age or a person who is an agent or employee of any person, or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age engages in vaginal intercourse or a sexual act with such victim, the defendant is guilty of a Class G felony.
Defendant contends that the word “custody” as used in the statute means legal control or restraint, which was not present since Mrs. Grindstaff voluntarily entered the hospital, a private institution, and could have left any time she wanted to. But in enacting this statute and making it applicable to private and charitable institutions, whose patients are nearly all voluntary, the General Assembly obviously used the word “custody” in its broadest sense, intending thereby, we believe, to protect from abuse all hospital patients, voluntary and committed alike. Certainly voluntary patients need the protection that the statute provides no less than committed patients; for though they have the power to terminate their stay, while they remain as patients of a hospital they are as vulnerable as committed patients to abuse by employees who have ready access to their quarters and supply them with food, drink, medication, assistance, and other necessary care. We therefore hold that the evidence tends to show that defendant’s employer, St. Joseph’s Hospital, had custody of Mrs. Grindstaff within the meaning of G.S. 14-27.7 when the alleged crimes were committed.
The jury instruction that defendant objected to and cites as error also had to do with the hospital having “custody” of Mrs. Grindstaff. After correctly instructing that the State had to prove beyond a reasonable doubt that St. Joseph’s Hospital had custody of Mrs. Grindstaff, that defendant was an employee of the hospital, and that he committed the sex acts charged, the court further charged: “Custody is the care, keeping or control of one person by another. A medical hospital’s housing of a patient would be custody.” This, too, is a correct instruction in our opinion. Though defendant sees the instruction that “[a] medical hospital’s housing
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of a patient would be custody” as dispensing with proof of an element of the crime that the State was required to prove, in so charging the court but stated a correct legal conclusion — as judges do who charge that a gun, knife or club is a deadly weapon, etc.,
State v. Parker,
7 N.C. App. 191 , 171 S.E. 2d 665 (1970) — and it was the jury’s province, as the court had charged, to determine as a fact whether custody had been proved beyond a reasonable doubt.
But defendant’s final contention, that the trial court erred in sentencing him on both counts by finding as an aggravating factor that the defendant “took advantage of a position of trust or confidence to commit the offense,” is well taken. “Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation,” G.S. 15A-1340.4(a)(l), and the evidence necessary to convict defendant tended to show he took advantage of his custodial position in committing the offenses involved. That the sentences imposed were less than the presumptive terms is not decisive. The defendant is entitled to a sentencing hearing on this count unaffected by an erroneously founded factor in aggravation. State
v. Gaynor,
61 N.C. App. 128 , 300 S.E. 2d 260 (1983).
No error in the trial.
Judgments vacated and remanded for resentencing.
Judges BECTON and COZORT concur.