dissenting.
I.
The majority today decides that a voluntary patient in a private hospital is in the “custody” of the hospital within the meaning of N.C.G.S. § 14-27.7. I cannot follow the majority in its tortured path to this conclusion and therefore dissent.
As the majority states, custody involves the control of a person. As the evidence in this case amply shows, St. Joseph’s Hospital did not have control of the female prosecuting witness, either in law or in fact.
Q. Now,, are you saying that you’re familiar with the admission policies of St. Joseph’s Hospital?
A. Yes, sir.
Q. Now, is a patient admitted, I believe you said by — only if a doctor recommends the patient?
A. That’s right.
Q. When they go in a hospital, are they free to leave anytime they want to?
A. Yes, they are.
Q. Can they leave even against the doctor’s orders or the nurse’s orders?
A. Yes, when a patient comes in he signs a consent for treatment, and any unusual treatment has to have a separate consent, and a patient can leave anytime he wants to or refuse any treatment.
Q. Can he refuse medicines if he wants to?
A. Yes.
Q. Can he get up and walk out without any reason at all?
A. If you want to do that.
Q. Do you all have any control over them at all unless he wants it? Do you exercise any control—
A. We don’t physically keep anyone in, no.
*268Q. And you do nothing against his will, the patient’s will, or her will?
A. No. No.
Q. Now, you do have —One section of your hospital — Let’s see, what floor is the intensive care unit on?
A. It’s on the 10th floor, the top floor.
Q. Is that the only thing on that floor, or are there other things on that floor?
A. Coronary care is up there and the stepdown unit is up there.
Q. You do have one unit on one floor called Kingdom Hall, don’t you?
A. Yes, sir, on the 5th floor.
Q. What kind of hall is that?
A. That’s a fourteen-bed psychiatric unit.
Q. And that has nothing to do with the intensive care unit?
A. No, sir, not at all.
Q. It’s a different — You do have some patients there that the hospital takes custody over?
A. Within the last — well, just within this calendar year we have started taking some committed patients, but that’s all.
Q. Was [prosecuting witness] a committed patient?
A. No, sir, we did not have any committed patients until this year.
Q. Even Kingdom Hall didn’t have any?
A. No, they did not.
Q. You just took patients who were having problems who wanted to come in voluntarily?
A. Yes, they were all voluntary admissions.
*269Q. Now, did you attempt in any way to require [prosecuting witness] or anybody else to do anything against their will?
A. No, sir.
Q. Did you at any time restrain [prosecuting witness] from leaving that hospital?
A. No, sir.
Q. She could have gotten up and walked out anytime she chose?
A. Yes, sir, a patient can do that, except the committed ones.
Q. And when she was in intensive care, was the hospital responsible for her care?
A. Just the same as we’re responsible for any patient’s care.
Q. Now, Mr. Brown asked you, I believe, if you didn’t take charge of the care of this patient, [prosecuting witness], and I’ll ask you if you didn’t confine that just to her medical care?
A. Yes, sir.
Q. And even for medical care, she could either approve or disapprove of any procedure, is that right?
A. Yes, sir, that’s right.
Q. And she could refuse any procedure or any medication?
A. That’s right. Any patient can do that.
Q. And her will would prevail, rather than your will?
A. Yes, sir.
The prosecuting witness testified:
Q. What did the nurses do there in your room?
A. They wanted to give me a bath.
*270Q. Did you let them give you a bath at that time?
A. No, I did not.
Q. You saw no other nurse?
A. I saw one when I was trying to leave the hospital, but I couldn’t tell you who she was.
As the foregoing evidence demonstrates, assuming the majority is correct in extending the meaning of “custody,” the record does not contain any evidence to support a jury finding that this victim was in custody at the time of the alleged events. The motion to dismiss should have been allowed on a factual basis.
Further, I do not agree that, as a matter of law, custody within the meaning of the statute includes a person who is a voluntary patient in a hospital, public or private. The majority opinion does not contain all the relevant parts of the statute. The entire statute follows:
If a defendant who has assumed the position of a parent in the home of a minor victim engages in vaginal intercourse or a sexual act with a victim who is a minor residing in the home, or if 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. Consent is not a defense to a charge under this section.
N.C.G.S. § 14-27.7 (1986). In determining the legislative intent with respect to the statute, it is noted that the statute opens with the reference to parent-child relationships and then proceeds to alternative custody positions. Thus it appears that the legislature first intended to protect children from those occupying a parental relationship and also other persons in similar custodial relationships. As the legislature did not define “custody” as used in the statute, statutory interpretation would lead one to the conclusion that the legislature intended “custody” to be of the same nature as the parent-child relationship. See State v. Fenner, 263 N.C. *271694, 140 S.E. 2d 349 (1965). A voluntary patient in a private hospital certainly does not occupy a position in any way similar to that of a child with respect to its parent. As the evidence in this case shows, such patient is free to leave the hospital at any time regardless of the desires of the attending physician or the hospital; the patient can refuse any medical procedure or treatment; the patient can refuse the “care” of the hospital (here the victim would not allow the nurses to give her a bath); the patient can exercise her own free will.
Of course, criminal statutes must be strictly construed against the state. State v. Ross, 272 N.C. 67, 157 S.E. 2d 712 (1967). Criminal statutes must be liberally construed in favor of a defendant, with all conflicts resolved in favor of defendant. State v. Pinyatello, 272 N.C. 312, 158 S.E. 2d 596 (1968); State v. Scoggin, 236 N.C. 1, 72 S.E. 2d 97 (1952). Ordinary words in a statute are given their ordinary meaning. All of the majority’s definitions of custody involve some aspect of control; this appears to be true in all definitions of custody — the institution must have control, either actual or legal, over the person. “Custodial” is defined in Webster’s Ninth New Collegiate Dictionary at 318 as “marked by or given to watching and protecting rather than seeking to cure.” This definition argues strongly that voluntary patients in hospitals are not in “custody.” The statement in the majority’s opinion that voluntary patients in a private hospital place themselves in the “care, charge, and control” of the hospital is unsupported by any citation of authority and is contrary to all the evidence in this case. The evidence set forth above clearly shows that the prosecuting witness in this case had control of whether she would remain in the hospital, whether she would submit to treatment by the physicians and hospital, and whether she would submit to the care of the hospital. In truth, the evidence discloses that the hospital offered its services to her, even recommended certain medical treatment and care, but the patient had control of the decision of whether to submit to the care, treatment, and hospitalization itself. This is not “custody” as used in the statute.
It is true, of course, that voluntary patients in hospitals must be protected from sexual assaults. They are provided that protection by N.C.G.S. §§ 14-27.2 to .6, -33(a), (b)(l)-(3), -39, and numerous other statutes. Such patients are not left unprotected by construing this statute against the state.
*272The decisions of this Court and other jurisdictions support the conclusion that the victim in this case was not in custody. In Wilkes v. Slaughter, 10 N.C. 211 (1824), this Court held that “custody implies physical force sufficient to restrain the prisoner from going at large . . . .” Id. at 216, overruled on other grounds, Currie v. Worthy, 47 N.C. 104 (1854).
Voluntary hospital patients are not in “custody” for Miranda purposes. State v. Lapp, 202 Mont. 327, 658 P. 2d 400 (1983); People v. Brice, 239 Cal. App. 2d 181, 48 Cal. Rptr. 562 (1966). The test applied in these cases was whether the hospital patient had been deprived of his freedom in any significant way. In Brice the court rejected the argument that where a patient was bedridden it was tantamount to being in custody.
In State v. Jackson, 80 Ariz. 82, 292 P. 2d 1075 (1956), the Arizona court, in interpreting “custody” as used in a criminal statute where “custody” was an essential element of the crime, held that in order to be in “custody” the person must be under the control of and subject to the orders of another person. The Arizona court relied upon People v. Drake, 162 Cal. 248, 121 P. 1006 (1912), holding that custody implied being under the control of another, in some restraint so that the person is not free to come and go or otherwise act as he pleases.
I conclude that the motion to dismiss should have been granted both because there was insufficient evidence to support a jury finding that the victim was in custody of the hospital and that as a matter of law “custody” as used in the statute does not include a voluntary patient in a private hospital.
II.
I also dissent from the holding of the majority finding no error in the jury charge of the trial judge. In pertinent part, the trial judge charged the jury: “Second, that St. Joseph’s Hospital had custody of [prosecuting witness]. Custody is the care, keeping or control of one person by another. A medical hospital’s housing of a patient would be custody,” and with respect to the sexual offense charge: “Second, the State must prove beyond a reasonable doubt that St. Joseph’s Hospital had custody of [prosecuting witness]. Custody is the care, keeping or control of one person by *273another. A medical hospital’s housing of a patient would be custody.”
The elements of this offense are:
1. The defendant had vaginal intercourse (or committed a sexual act) with the victim;
2. The victim was then in the custody of (name institution);
3. The defendant was an agent of the institution.
N.C.P.I. — Crim. 207.70 (1986). The pattern jury instructions contain a footnote: “It [N.C.G.S. § 14-27.7] appears to be intended to make criminal all sexual activity of persons having legal custody, such as guardians, jailers or employees of mental institutions, with their wards.”
The state has the burden to prove beyond a reasonable doubt as an element of the offense that the victim was in the custody of an institution at the time of the offense. See Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508 (1975); In re Winship, 397 U.S. 358, 25 L.Ed. 2d 368 (1970); State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604 (1979).
The trial judge’s instructions went beyond even the majority’s notion of the meaning of custody, telling the jury that housing of the victim by the hospital would be custody. In its final mandate to the jury, the trial court only required the jury to find that St. Joseph’s Hospital was “housing” the victim as a patient in order to find that she was in the custody of the hospital. In so doing, the trial court erred. At the very least, under the majority’s definition of custody, the jury would have to find that the victim was in the care, charge, and control of the hospital at the time in question. By failing to so do, the trial court improperly relieved the state of a part of its burden of proof, and defendant is entitled at least to a new trial. Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508. Failure to properly charge upon an essential feature of the case requires a new trial. State v. Ward, 300 N.C. 150, 266 S.E. 2d 581 (1980).
On the first issue the defendant is entitled to a dismissal of the charges. At the very least he is entitled to a new trial for the erroneous jury instruction.
Justices FRYE and WEBB join in this dissenting opinion.