Later courts went against this
Overruled by State v. Etheridge, 319 N.C. 34 (1987)
We therefore expressly overrule State v. Lester, 70 N.C. App. 757, 321 S.E. 2d 166, aff’d per curiam, 313 N.C. 595, 330 S.E. 2d 205.
The opinion
Judge Phillips
dissenting.
I dissent from the holding of the majority that the evidence presented was not sufficient to support defendant’s conviction on the rape charge. Two significant circumstances in this case, which were not present in State v. Alston, 310 N.C. 399 , 312 S.E. 2d 470 (1984), where the victim was defendant’s independently situated former girl friend who followed him to their accustomed rendezvous place, are that the child was under defendant’s constant and continuing control and dominion, and the incident occurred where they lived. The first of these circumstances, it seems to me, is a foundation which supports the other evidentiary circumstances and enables them to support each other, and when the jury considered his many cruelties and threats from that base, they were justified, I think, in concluding that the girl submitted to defendant out of fear. In the situation that existed, the threat of force, though implicit, was constant, and having stated that she did not wish to submit, the circumstances did not require her to physically resist.