                           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:
                                   -2-
      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.
                                      -3-
            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.
                                          -4-
    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
                                    -5-
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
                                  -6-
           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
                                       -7-
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.
                          -8-
Judges GEER and ERVIN concur.
