STATE OF NORTH CAROLINA
v
.
ANTHONY MATHEW MANGUM
Attorney General Roy Cooper, by Assistant Attorney General
Frank G. Swindell, Jr., for the State.
William D. Spence for defendant appellant.
TIMMONS-GOODSON, Judge.
Anthony Mathew Mangum (“defendant”) appeals from the
judgment of the trial court entered upon a jury verdict finding
him guilty of first-degree burglary, attempted second-degree
rape, and second-degree kidnapping. Defendant also pled guilty
to habitual felon status. For the reasons stated herein, we
find no error in the judgment of the trial court.
The evidence for the State tended to show the following:
On 13 February 2001, at approximately 2:30 a.m., defendant
knocked on the door of the residence of the victim, C.H. C.H.lived at the residence with her mother, sister, and her
sister's two young daughters. Defendant was the victim's
cousin and a friend of her brother. When C.H. answered the
door, she informed defendant that he could not come into the
residence. She returned to bed and fell asleep.
C.H. woke at 4:00 a.m. because her niece was standing
beside her bed. When C.H. left her bedroom to return the child
to her own room, C.H. observed defendant standing in the living
room of the residence. C.H. then picked up a telephone and
asked defendant how he had entered the residence. Defendant
informed C.H. that her mother had let him in, but C.H. knew
that her mother was out of town at that time. C.H. then woke
her sister, Karena, and asked her whether she had allowed
defendant to enter the residence. When Karena responded
negatively, C.H. telephoned 911 emergency assistance.
Defendant then asked to use the telephone and the restroom,
both of which requests C.H. denied. Defendant then pushed C.H.
down the hall, into her bedroom and onto her bed. C.H. and
defendant began struggling, and defendant attempted to “pin
[C.H.] down” on the bed. Defendant then “pulled out some duct
tape,” and C.H. called to Karena for assistance. According to
defendant, “when [he] was holding [the victim] down on thebed[,] she was yelling out, 'he is trying to rape me' to her
sister Karena.” When Karena entered the bedroom, defendant was
lying on top of C.H. and holding her arms “behind her back real
tightly.” C.H. told Karena to “get the wood stick” that she
kept beside her bed for protection, but Karena's children were
crying and she left the room to attend to them. Defendant then
began “grabbing [C.H.] on [her] vagina” and “grabbed her whole
breast.” C.H. managed to reach the piece of wood she kept
beside her bed and struck defendant with it. Defendant ended
his assault when law enforcement arrived shortly thereafter.
Defendant fled the residence, escaping through the rear door.
In his later statement to law enforcement officers,
defendant admitted that he “broke in the trailer without
permission.” Defendant further stated that C.H.
picked up a stick and started hitting me
with it. I knocked the stick out of her
hand and grabbed her and pushed her up onto
the bed. I got on top of her and was
holding her down on the bed. I was telling
-- I was talking to her telling her why is
she treating me like this. [C.H.] was not
fighting me then because I had her arms
held down. I then touched her right breast
one time. I grabbed her whole breast in my
hand. [C.H.] was yelling at me to get off
of her. I then grabbed her between her
legs. . . . I got a piece of duct tape out
of my left pocket and told her I was going
to put this tape on her mouth if she didn'tstop fussing at me. . . . When I was
holding [C.H.] down on the bed she was
yelling out he is trying to rape me to her
sister Karena. I know what I did was wrong
and if I just could do it all over again I
would not have went [sic] into the trailer
without permission. . . . I did not know
[C.H.] was going to tell the police that I
was trying to rape her. I was just
horseplaying when I grabbed her breast and
her vagina.
Defendant offered no evidence at trial.
Upon the close of the evidence, the jury found defendant
guilty of first-degree burglary, attempted second-degree rape,
and second-degree kidnapping. Defendant also pled guilty to
habitual felon status. The trial court consolidated the
charges and sentenced defendant to a minimum term of 100
months' imprisonment, with a maximum term of 129 months'
imprisonment. From the judgment entered against him, defendant
appeals.
___________________________________________________
Defendant contends that the trial court erred in (1)
denying defendant's motion to dismiss the charges against him;
(2) failing to instruct the jury on the lesser-included offense
of non-felonious breaking and entering in the first-degree
burglary charge; and (3) failing to instruct the jury on the
lesser-included offense of false imprisonment in the second-degree kidnapping charge. For the reasons stated herein, we
find no error in the judgment of the trial court with respect
to defendant's arguments.
By his first assignment of error, defendant contends that
there was insufficient evidence that he intended to rape the
victim or otherwise commit any felony within the residence at
the time he forced his way into the home. Defendant therefore
argues that the trial court erred in denying his motion to
dismiss the charge of first-degree burglary and of attempted
second-degree rape. Defendant asserts that there was a similar
lack of evidence to support the charge of second-degree
kidnapping.
Upon a defendant's motion to dismiss, the trial court must
consider the evidence in the light most favorable to the State,
allowing every reasonable inference to be drawn therefrom. See
State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
A motion to dismiss is proper when the State fails to present
substantial evidence of each element of the crime charged. See
State v. McDowell, 329 N.C. 363, 389, 407 S.E.2d 200, 214
(1991). Substantial evidence is evidence that is “existing and
real, not just seeming or imaginary.” State v. Powell, 299
N.C. 95, 99, 261 S.E.2d 114, 117 (1980). We therefore examinethe relevant law regarding the crimes of which defendant was
convicted and the evidence presented by the State supporting
such convictions.
To support a first-degree burglary conviction, there must
be evidence from which a jury could find that the defendant
broke and entered an occupied dwelling of another at nighttime
with the intent to commit a felony therein. See State v.
Wells, 290 N.C. 485, 494, 226 S.E.2d 325, 331 (1976). The
intent to commit a felony must exist at the time of entry, and
it is no defense that the defendant abandoned the intent after
entering. See State v. Wilson, 293 N.C. 47, 54, 235 S.E.2d
219, 223 (1977); Wells, 290 N.C. at 494, 226 S.E.2d at 331.
The indictment of defendant in the present case alleged that
defendant “broke and entered with the intent to commit felonies
therein, to wit: sexual assault and kidnapping.” Although
defendant correctly notes that the crime of sexual assault does
not exist in North Carolina, our Supreme Court has expressly
held that an indictment for burglary does not require
identification of the specific felony that the defendant
intended to commit when he broke into a dwelling. See State
v. Worsley, 336 N.C. 268, 280-81, 443 S.E.2d 68, 74 (1994); see
also State v. Roten, 115 N.C. App. 118, 121-22, 443 S.E.2d 794,797 (1994) (concluding that there was no fatal variance between
an indictment alleging that the defendant forcibly entered a
residence “with the intent to commit a felony therein: first
degree sexual offense” and the defendant's conviction of first-
degree burglary and attempted second-degree sexual offense
because “the State is only required in the indictment to allege
that the defendant intended to commit a felony” and therefore
“any language in the indictment which states with specificity
the felony defendant intended to commit is surplusage which may
properly be disregarded”). Because the indictment properly
alleged that defendant broke and entered the victim's residence
with the intent to commit a felony, the specific language
charging defendant with the intent to commit a sexual assault
was unnecessary and does not create a fatal variance between
the indictment and the evidence offered at trial. We further
note that the indictment charged defendant with the intent to
kidnap the victim, a crime for which he was convicted.
Defendant argues that the State failed to present
sufficient evidence that, at the time he forcibly entered the
victim's residence, he intended to either rape or kidnap her.
Because defendant's argument is dependent in large part on the
substantive law of this State concerning the crimes ofattempted rape and kidnapping, resolution of this issue first
requires an examination of these crimes. If there is
sufficient evidence from which a jury could find that defendant
either kidnapped or attempted to rape the victim, we will then
consider whether or not the State presented sufficient evidence
that defendant possessed the requisite intent to commit either
of these crimes at the time he broke into the victim's
residence. We now consider the crime of attempted rape.
In order to convict a defendant of attempted rape, the
State must show that (1) the defendant had the specific intent
to rape the victim; and (2) that the defendant committed overt
acts showing intent to rape, going beyond mere preparation but
falling short of the completed offense of second-degree rape.
See State v. Boone, 307 N.C. 198, 210, 297 S.E.2d 585, 592
(1982); State v. Canup, 117 N.C. App. 424, 427, 451 S.E.2d 9,
11 (1994). The defendant need not retain the specific intent
to rape throughout the commission of the overt acts forming the
basis of the charge, as long as he at any time during the
attempt has an intent to gratify his passion upon the woman,
notwithstanding any resistance on her part. See State v.
Banks, 295 N.C. 399, 412, 245 S.E.2d 743, 752 (1978). “'Intent
is an attitude or emotion of the mind and is seldom, if ever,
susceptible of proof by direct evidence[;] it must ordinarily
be proven by circumstantial evidence, i.e., by facts and
circumstances from which it may be inferred.'” Id. (quoting
State v. Gammons, 260 N.C. 753, 755-56, 133 S.E.2d 649, 651
(1963)).
The question of sufficiency of evidence to justify an
inference of intent to rape has been addressed by our appellate
courts in a number of cases. In State v. Gay, 224 N.C. 141,
29 S.E.2d 458 (1944), the Court held that where the defendant
indecently exposed himself to the victim on a city street,
posed an indecent question, and chased her briefly when she
screamed and ran, but did not touch the victim, there was
insufficient evidence of assault with intent to commit rapebecause there was no showing that the defendant intended to
gratify his passions notwithstanding the resistance of the
victim. Id. at 143, 29 S.E.2d at 459.
In contrast to Gay, the Supreme Court concluded in State
v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974), that there was
sufficient evidence of the defendant's intent to commit rape
to support the defendant's conviction of first-degree burglary
where the evidence tended to show that the defendant climbed
into the victim's window, got into bed with her with his
outside pants down and put his hand over her mouth, threatened
to cut her throat if she screamed, and ran away only when a
third individual turned on the light in the room. Id. at 750,
208 S.E.2d at 508.
Defendant argues that the facts of the instant case are
most analogous to the facts presented in State v. Rushing, 61
N.C. App. 62, 300 S.E.2d 445, affirmed per curiam, 308 N.C.
804, 303 S.E.2d 822 (1983), and State v. Nicholson, 99 N.C.
App. 143, 392 S.E.2d 748 (1990). In Rushing, this Court
vacated the defendant's conviction of attempted rape,
concluding that there was insufficient evidence of the
defendant's intent to rape the victim. The defendant in
Rushing entered the victim's bedroom through a window,
threatened to kill her if she screamed, and grabbed her arm.
The defendant was wearing pants and gloves but no shirt at the
time. When the victim's small child woke up and began
screaming, the defendant abandoned his assault and jumped out
of the window. The Court concluded that “a shirtless male's
nocturnal entry into the bedroom of a sleeping woman” was
insufficient to support an inference that the defendant
intended to commit rape at the time he entered her room.
Rushing, 61 N.C. App. at 66, 300 S.E.2d at 449.
The evidence in State v. Nicholson tended to show that,
upon entering the residence of the victim, the defendant held
a pistol to the victim's head and told her he was going to kill
her. See Nicholson, 99 N.C. App. at 144, 392 S.E.2d at 750.
He then forced the victim to walk to the living room of the
residence, where she either fell or slid down onto the floor.
The defendant picked the victim up and began carrying her
towards the rear of the residence where the bedrooms and
bathrooms were located. The victim screamed, fell or was
dropped to the floor, and the defendant “slammed himself down
on top of her.” Id. at 145, 392 S.E.2d at 750. The defendant
then began crying and allowed the victim to leave. He later
apologized to her and gave her the pistol. The Court vacatedthe defendant's conviction of attempted rape, as there was no
“evidence that would give rise to a reasonable inference that
the attack on the victim was sexually motivated or that the
defendant at any time had the intent to gratify his passion on
the victim.” Id. at 146, 392 S.E.2d at 750.
In the instant case, the evidence showed that defendant
forced entry into the victim's residence at 4:00 a.m., pushed
the resisting victim into her bedroom and “pinned her” onto the
bed with his body, removed duct tape from his pocket and
threatened to tape her mouth if she didn't “stop fussing” at
him. The victim called to her sister, stating that defendant
“was trying to rape her.” During the struggle, defendant
“grabbed [the victim's] whole breast in [his] hand” and
“grabbed her between her legs.” Defendant did not end his
assault on the victim until law enforcement arrived.
We conclude that there is sufficient evidence in the
instant case, taken in the light most favorable to the State,
from which a reasonable jury could find that defendant intended
to gratify his passion on the victim, her resistance
notwithstanding. Unlike the defendants in Rushing and
Nicholson, defendant here committed overt acts manifesting an
intent of forcible sexual gratification. Because there was
sufficient evidence of defendant's intent to rape the victim,
the trial court did not err in denying defendant's motion to
dismiss the charge of attempted second-degree rape.
We moreover conclude that there was sufficient evidence
from which a jury could find that defendant intended to rape
the victim at the time he forced his way into the residence.
The intent with which the accused broke and entered may be
found by the jury from evidence as to what he did within the
house. See State v. Freeman, 307 N.C. 445, 449, 298 S.E.2d
376, 379 (1983); Bell, 285 N.C. at 750, 208 S.E.2d at 508.
Here, the evidence tended to show that defendant forced his way
into the residence at four o'clock in the morning, when all of
the residents of the home were asleep. When questioned,
defendant lied to the victim, telling her that her mother had
opened the door. Defendant then asked to use a telephone and
the restroom. When the victim refused his request, defendant
forced the victim into her bedroom, pushed her onto the bed,
threw his body on top of hers and “pinned her down.” Defendant
then removed duct tape from his pocket, whereupon the victim
renewed her efforts to escape and called for help. Defendant
repeatedly touched the victim's breast and vagina and, despite
her resistance, did not end the assault until law enforcementarrived. Although defendant asserts that he merely wished to
use the telephone or the restroom when he entered the home,
none of the acts he committed within the residence furthered
these asserted goals. From the evidence presented, a
reasonable jury could conclude that defendant broke into the
residence with the specific intent to rape the victim. The
trial court therefore did not err in denying defendant's motion
to dismiss the charge of first-degree burglary.
Defendant further argues that the trial court erred in
denying his motion to dismiss the charge of second-degree
kidnapping. Defendant contends that there was insufficient
evidence that he restrained the victim for the purpose of
facilitating a felony. Given our conclusion that there was
sufficient evidence from which the jury could find that
defendant intended to rape the victim when he held her down on
the bed, this argument is without merit. Defendant
further contends that the evidence of restraint forming the
basis of the kidnapping charge was not independent of the
restraint inherent in the attempted rape charge. Kidnapping,
whether in the first or second degree, requires the unlawful
restraint or confinement of a person for one of the purposes
enumerated in the statute, which includes commission of a
felony. See N.C. Gen. Stat. § 14-39(a) (2001). The unlawful
restraint must be an act independent of the intended felony.
See State v. Mebane, 106 N.C. App. 516, 532, 418 S.E.2d 245,
255, disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992).
Thus, the defendant's restraint of the victim must be
independent of the alleged rape or attempted rape. The test
of the independence of the act is “whether there was
substantial evidence that the defendant[] restrained or
confined the victim separate and apart from any restraint
necessary to accomplish the act[] of [attempted] rape.” Id.
“Asportation of a rape victim is sufficient to support a charge
of kidnapping if the defendant could have perpetrated the
offense when he first threatened the victim, and instead, took
the victim to a more secluded area to prevent others from
witnessing or hindering the rape.” State v. Walker, 84 N.C.
App. 540, 543, 353 S.E.2d 245, 247 (1987). Where the
asportation is separate and independent of the rape, it
constitutes removal for the purpose of facilitating the felony
of rape, and is therefore kidnapping under the statute. See
id.
In the instant case, the evidence tended to show that
defendant pushed the victim down the hallway of her residence,away from her sister's bedroom, into her bedroom and “pinned
her” on her bed. We conclude that defendant's actions
constitute evidence that he “took the victim to a more secluded
area to prevent others from witnessing or hindering the rape.”
Id. The trial court therefore did not err in denying
defendant's motion to dismiss the charge of second-degree
kidnapping, and we overrule defendant's first assignment of
error.
By his second assignment of error, defendant contends that
the trial court committed plain error by failing to instruct
the jury on the lesser-included offense of non-felonious
breaking and entering. “In order to prevail under a plain
error analysis, defendant must establish not only that the
trial court committed error, but that 'absent the error, the
jury probably would have reached a different result.'” State
v. Sierra, 335 N.C. 753, 761, 440 S.E.2d 791, 796 (1994)
(quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692,
697 (1993)).
Misdemeanor breaking or entering is a lesser-included
offense of first-degree burglary. State v. Jones, 264 N.C.
134, 136, 141 S.E.2d 27, 29 (1965); State v. Patton, 80 N.C.
App. 302, 305, 341 S.E.2d 744, 746 (1986). “The distinction
between the two offenses rests on whether the unlawful breaking
or entering was done with the intent to commit the felony named
in the indictment.” Patton, 80 N.C. App. at 305, 341 S.E.2d
at 746.
“Where the only evidence of the defendant's
intent to commit a felony in the building
or dwelling was the fact that the defendant
broke and entered a building or dwelling
containing personal property, the appellate
courts of this State have consistently and
correctly held that the trial judge must
submit the lesser included offense of
misdemeanor breaking and entering to the
jury as a possible verdict. . . . However,
where there is some additional evidence of
the defendant's intent to commit the felony
named in the indictment in the building or
dwelling, such as evidence that the felony
was committed . . . or evidence that the
felony was attempted, or . . . evidence
that the felony was planned, and there is
no evidence that the defendant broke andentered for some other reason, then the
trial court does not err by failing to
submit the lesser included offense of
misdemeanor breaking and entering to the
jury as a possible verdict.”
Id. at 305-06, 341 S.E.2d at 746-47 (quoting State v. Thomas
and State v. Christmas and State v. King, 52 N.C. App. 186,
196-97, 278 S.E.2d 535, 542-43 (1981)).
In the instant case, there was substantial evidence that
defendant entered the residence in order to rape the victim.
Once inside, defendant pushed the victim into her room and onto
her bed, held her arms tightly behind her back, removed duct
tape from his pocket, and repeatedly touched the victim's
breast and vagina. Although defendant argues that there was
evidence that he merely wanted to use the telephone and the
restroom, none of the above-stated acts committed by defendant
were in furtherance of defendant's stated intent to use the
telephone or restroom. We conclude that the trial court
committed no plain error in failing to instruct the jury on
non-felonious breaking and entering, and we overrule this
assignment of error.
By his final assignment of error, defendant argues that
the trial court plainly erred by failing to instruct the jury
on the lesser-included offense of false imprisonment in thesecond-degree kidnapping charge. The difference between
kidnapping and the lesser-included offense of false
imprisonment is the purpose of the confinement, restraint, or
removal of another person. The offense is kidnapping if the
reason for the restraint was to accomplish one of the purposes
enumerated in the kidnapping statute. See State v. Whitaker,
316 N.C. 515, 520, 342 S.E.2d 514, 518 (1986). “The crux of
[the] question [is] whether 'there was evidence from which the
jury could have concluded that the defendant, although
restraining, confining and removing the victim, did so for some
purpose other than . . . to commit attempted second-degree
rape.'” Id. at 520-21, 342 S.E.2d at 518 (quoting State v.
Lang, 58 N.C. App. 117, 119, 293 S.E.2d 255, 257, disc. reviews
denied, 306 N.C. 747, 295 S.E.2d 761 (1982)). Where the State
presents evidence of every element of the offense, and there
is no evidence to negate these elements other than the
defendant's denial that he committed the offense, then no
lesser-included offense need be submitted. See State v.
Williams, 314 N.C. 337, 352-53, 333 S.E.2d 708, 719 (1985).
Defendant asserts that there was evidence from which the
jury could find that defendant restrained the victim for
purposes of using the telephone or restroom, or for purposesof “horseplay.” We are unpersuaded. We fail to see how
defendant's restraint of the victim and the repeated touching
of the breast and vagina furthered his stated intent of using
the telephone or restroom. Defendant's overtly sexual actions
also belie his assertion that he was merely engaging in
“horseplay” with the victim. We conclude that there was
substantial evidence from which a jury could find that
defendant restrained the victim for the purpose of raping her.
We therefore find no plain error by the trial court in failing
to instruct on the lesser-included offense of false
imprisonment.
We hold that the trial court did not err in denying
defendant's motion to dismiss the charges against him. We
further hold that the trial court committed no plain error in
failing to instruct the jury on the lesser-included offenses
of misdemeanor breaking and entering and false imprisonment.
In the judgment of the trial court, we therefore find
No error.
Judges HUDSON and STEELMAN concur.
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