State v. Henderson

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.