State v. Henderson , 233 N.C. App. 538 ( 2014 )

NO. COA13-1228
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 12 CRS 201449
KEVIN MCDONALD HENDERSON
Appeal by Defendant from Judgment entered 28 February 2013
by Judge Michael J. O’Foghludha in Wake County Superior Court.
Heard in the Court of Appeals 19 March 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Daphne D. Edwards, for the State.
Jon W. Myers for Defendant.
STEPHENS, Judge.
Procedural History and Evidence
Defendant Kevin McDonald Henderson was charged with second
degree sexual offense on 19 January 2012. The trial began on 20
February 2013 and concluded the following day. The evidence at
trial tended to show the following:
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Sandra1 was walking through a Target store in Raleigh on 17
September 2011 with her young child. She was wearing a knee-
length denim skirt with a slit in the back. While perusing the
candle section, Sandra noticed a man, who was later determined
to be Defendant, standing nearby. Sandra moved on to the
cosmetics area and gave her child permission to explore the
candy section, which was located “a few aisles down.”
Sandra began looking at makeup. Another woman was standing
about two feet away. As Sandra bent down to pick something off
the bottom shelf, she felt fingers “coming up between the slit
in my skirt, parting between my buttocks, and touching in
between my vaginal lips.”
And I was, like — [the] first thing I
thought was, like, my brain was trying to
process something. And I don’t know if
anyone’s ever had the experience of being in
a grocery store aisle and, like, a three-
year-old kid reaches up your skirt, but they
don’t mean it, you know, when a little kid
does it. So the first thing my brain is
trying to process is what was happening, was
there a kid? And, like, my brain is, “Okay.
No kid is going to do that.” It was almost
1
Defendant notes in his brief that, while N.C.R. App. P. 3.1(b)
does not apply to adults, it is the policy of the North Carolina
Indigent Defense Services “[to shield] the identities of victims
of sexual crimes in appellate filings” regardless of age. We
commend the policy of Indigent Defense Services and use a
pseudonym for that purpose here. We recommend that the State
also observe such a policy.
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that feeling of, like, you know, something
inappropriate. And I guess my brain was just
grasping for it being a kid or something.
At that point, Sandra turned around and saw Defendant. “He was
very close to me. His face was there. I saw him. He looked at
me, and he ran. He ran right away.” As Defendant left, Sandra
heard the other woman say, “What did he do to you? What did he
do to you?”
Sandra reported the incident to Target, and the police were
called. In the meantime, Sandra met with a Target employee and
explained the situation. According to the employee, Sandra was
“very startled, shaken, not to the point she was in tears, but
she was very upset. You could tell she was angry.”
Testifying in his own defense, Defendant admitted “plac[ing
his] right hand . . . on the top of [Sandra’s] backside, her
butt — buttocks . . . two inches above the split [in her
skirt].” According to Defendant, he noticed her skirt “and was
enticed by looking at that.” When he saw her bend over to get
something from a lower shelf, Defendant “wanted to touch her
. . . backside because . . . the skirt was form fitting.” Hoping
to make it appear as if he accidentally brushed her, Defendant
touched Sandra on the buttocks. When Sandra stood up, Defendant
realized he had gone too far and left.
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Defendant moved to dismiss the charges against him at the
close of the State’s evidence. That motion was denied, and
Defendant renewed his motion to dismiss at the close of all the
evidence. The motion was again denied, and Defendant was found
guilty by unanimous jury verdict on 21 February 2013. One week
later, on 28 February 2013, the trial court sentenced Defendant
to 69 to 92 months in prison with credit for 264 days served.
Defendant appeals.
Standard of Review
Upon [the] defendant’s motion for
dismissal, the question for the [appellate
c]ourt is whether there is substantial
evidence (1) of each essential element of
the offense charged, or of a lesser offense
included therein, and (2) of [the]
defendant’s being the perpetrator of such
offense. If so, the motion is properly
denied.
State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455
(citation and internal quotation marks omitted), cert. denied,
531 U.S. 890, 148 L. Ed. 2d 150 (2000).
Discussion
On appeal, Defendant contends that the trial court erred in
denying his motion to dismiss because the evidence is
insufficient to show that he acted “by force and against the
will of [Sandra],” a necessary element of second-degree sexual
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offense. Specifically, Defendant argues that the touching
occurred by surprise and, thus, did not “afford[ Sandra] the
opportunity to consent” or resist. This argument is entirely
without merit.
Under section 14-27.5 of the North Carolina General
Statutes, a person may be found guilty of a sexual offense in
the second degree if that person engages in a sexual act with
another person “[b]y force and against the will of the other
person[.]” N.C. Gen. Stat. § 14-27.5 (2013).
The statutory requirement that the act be
committed by force and against the will of
the victim may be established by either
actual, physical force, or by constructive
force in the form of fear, fright, or
coercion. . . . “Physical force” means force
applied to the body.
In re Clapp, 137 N.C. App. 14, 24, 526 S.E.2d 689, 696–97 (2000)
(citations and certain internal quotation marks omitted). The
actual force element “is present if the defendant uses force
sufficient to overcome any resistance the victim might make.”
State v. Brown, 332 N.C. 262, 267, 420 S.E.2d 147, 150 (1992)
(citations omitted; emphasis added).
With regard to the offense of rape, our courts have
historically
implied in law the elements of force and
lack of consent so as to make the crime of
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rape complete upon the mere showing of
sexual intercourse with a person who is
asleep and therefore could not resist or
give consent. The phrase “by force and
against the will” used in the first and
second-degree rape statutes and the first
and second-degree sexual offense statutes
means the same as it did at common law when
it was used to describe some of the elements
of rape. It makes no difference in the case
of a sleeping or similarly incapacitated
victim whether the State proceeds on the
theory of a sexual act committed by force
and against the victim’s will or whether it
alleges an incapacitated victim; force and
lack of consent are implied in law.
State v. Dillard, 90 N.C. App. 318, 322, 368 S.E.2d 442, 445
(1988) (citations, certain internal quotation marks, certain
brackets, and ellipsis omitted; emphasis added).
Here, as discussed above, Defendant argues that the State
failed to present sufficient evidence that he acted by force and
against Sandra’s will because she did not have time to decide
whether to consent or object to the touching.2 Thus, Defendant
2
Defendant’s argument appears to be rooted in a misreading of
the Brown case, cited above. In that case, Justice Frye wrote a
concurring opinion expressing his wish that the Court had taken
more time to “say explicitly what I believe is already implicit
in our law: the elements of force and lack of consent in rape
and sexual offense cases may be satisfied when the [State]
demonstrates, as in this case, that the attack was carried out
by surprise.” Brown, 332 N.C. at 274, 420 S.E.2d at 154 (Frye,
J., concurring). Defendant’s brief indicates that he erroneously
believes Justice Frye was dissenting and not concurring in that
opinion. As a result, Defendant inaccurately argues that the
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suggests that individuals may lawfully commit acts similar to
the one committed here as long as they do so by surprise. This
argument borders on the absurd. As quoted above, we have already
stated that an individual may be guilty of second-degree sexual
offense when the victim is sleeping or similarly incapacitated.
Id.The touching in this case was clearly against Sandra’s
will. To the extent that Sandra was not aware of the touching
before it occurred or did not understand the exact nature of the
touching at the moment it occurred, lack of consent is implied
in law. See, e.g., Brown, 332 N.C. at 274, 420 S.E.2d at 154(holding that the State introduced substantial evidence of the
defendant’s use of force, even though the victim initially
believed the assailant was a nurse, when the defendant entered
the victim’s hospital room, pulled away her bed clothing and
gown, pushed her panties aside, and touched her vagina). Whether
Sandra was “surprised” by Defendant’s actions has no bearing on
the applicability of the second-degree sexual offense statute.
Defendant’s argument is overruled.
NO ERROR.
trial court incorrectly “followed Justice Frye’s dissent in
Brown and applied the law as he wanted it to be.” In fact, the
trial court applied the law as it is.
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Judges GEER and ERVIN concur.