An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-1430


Filed: 6 July 2004


    v.                            Forsyth County
                                No. 02 CRS 51072

    Appeal by defendant from judgment dated 14 May 2003 by Judge A. Moses Massey in Forsyth County Superior Court. Heard in the Court of Appeals 15 June 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Fred Lamar, for the State.

    Samuel L. Bridges for defendant-appellant.

    BRYANT, Judge.

    Edward Ray Gray (defendant) appeals a judgment dated 14 May 2003 entered consistent with a jury verdict finding him guilty of attempted second-degree sexual offense.
    At trial, the State's evidence tended to show that H.   (See footnote 1)  (the victim) was a fifty-six-year-old woman with “high severe to low moderate range of mental retardation” and adaptive skills in the “profound range of mental retardation.” She was a client of Forsyth Industrial Systems (FIS), which is a “sheltered workshop” and vocational training center for adults with disabilities run byCenterpoint Human Services in Winston-Salem, North Carolina. Due to her mental limitations and a history of seizures, H. was involved in FIS's “Friends” program that provides care and supervision for unemployable persons. FIS employees described H. as unfailingly well groomed and neat in appearance and possessing a good-natured, childlike disposition.
    During the lunch period on 8 November 2001, FIS employee Jannette Irvin saw H. standing with defendant. Defendant told Irvin he was a friend of H.'s brother. Irvin escorted defendant from the cafeteria and informed him that he needed to obtain an identification badge from the front desk. On hearing the bell ending the lunch period, Irvin walked back to the work floor. Approximately twenty minutes later, H. came onto the work floor, appearing “very agitated” and “pointing to her vaginal area.” Irvin did not speak to H. but could see that “her clothes were messed up” and her hair “had grass and stuff in it.”
    Maeola Pate Leak was retrieving a client's lunchbox at FIS on 8 November 2001, when she noticed H. walking toward the building exit with defendant. H. pointed to defendant and told Leak, “[t]his is my family,” and defendant told Leak that he and H. were leaving. When H. reappeared twenty minutes later, “her clothes were all out and her hair was all messed up and she had grass . . . in her hair.” She was also “upset and crying.” Pointing to her vaginal area, H. told Leak, “[h]e touched my bottom and I kept telling him I can't do that, I can't do that.” As Leak led H. to Gloria Hunder's office, H. said defendant “was trying to pull herpants down and she kept telling him no, no.” She told Leak that defendant kissed her and had pushed her down on the ground while she “kept telling him no.” When asked whether defendant had touched H. underneath her clothing, Leak replied:
        We really couldn't determine because she kept saying, you know, he tried, pulling my pants down and I kept telling him, no, don't do that, don't do that. And I -- we did ask her, did he put his hands in her pants and she did say yes.
    FIS employee Catherine D. Harrell went looking for H. after the lunch bell on 8 November 2001. H. rushed toward Harrell, wrapped her arms around her waist, and said, “I told him I can't do that, he touched my butt.” Although H. consistently said defendant touched her “butt” or “heinie,” Harrell described her accompanying gestures as follows:
        Her hands w[ere] spread like this and she touched her genital area and her back. And as she was doing that, that's when she was still saying, [“]I told him I can't do that.[”]

H. also told Harrell that defendant led her to a church, “tried to get her to lay down” and “bumped her head.”
    FIS supervisor Gloria Hunder also approached defendant in the FIS facility on 8 November 2001, and advised him that he needed to register at the front desk and to have H. paged if he wished to visit her. When defendant claimed to be a friend of H.'s brother, Hunder explained the protocol for signing clients out of the facility. As defendant headed toward the lobby, Hunder returned to her office. When she next saw H., H. said, “[t]he man, I told him I couldn't do that. He touched me here, he touched me here.” H.was touching “her genitalia and her -- her behind.” H. also told Hunder that defendant “pulled her pants down and -- and laid her down and got on top of her.”
    Winston-Salem Police Officer J.A. Henry responded to FIS at 1:30 p.m. on 8 November 2001, and interviewed H., whereupon she again stated that defendant “touched my heinie” while gesturing toward “her genital area up front.” Defendant asked H. “several times” to touch his genitals, but she said no. H. also refused to pull down her pants for defendant. Defendant pulled her pants down to her knees and got on top of her. He tried to kiss H., but she turned her head. H. also told Officer Henry Allen that her underwear had remained on.
    Ethlyn Csontas, a sexual assault nurse examiner, examined H. at Forsyth Medical Center at 3:40 p.m. on 8 November 2001. H. informed Csontas that defendant pushed her to the ground, where she bumped her head. He then held her legs down, pulled down her pants below her knees, and “put his hand on [her] bottom.” When Csontas asked H. to show where defendant had touched her, H. again “pointed to the front of her pubic area and her rectal area.” Further, H. said defendant did not put his fingers inside her. Although defendant unzipped his pants and asked H. to touch him, he did not expose himself to her. Csontas' pelvic examination of H. revealed no tearing or injury.
    Winston-Salem Police Detective Carla Yandell interviewed defendant on 31 January 2002. Defendant was “evasive” and repeatedly “chang[ed] his versions of what occurred” with H. Defendant initially claimed he walked into FIS, “met this girl, and they went for a walk to her cousin's house.” He then said they went to an apartment but later indicated that they had gone behind a dumpster. Likewise, defendant first claimed not to know H. but later “admitted that he lied about it” and that he knew H. “through his girlfriend who used to work at F[IS],” adding that H. “admired him.” Defendant said he was “probably intoxicated” from drinking beer, and described H. as having “a mental problem.”     Defendant told Yandell that he kissed H. but “no sexual thing happened.” He explained they sat down behind the dumpster, where they “talked about having sex and kissed and hugged.” H. “didn't want to take her clothes off,” “didn't want to have sex,” and “kept saying no.” Defendant ultimately admitted unzipping H.'s pants and pulling down her pants but insisted he “didn't go up in her.” Defendant told Yandell he “just touched her like this and this,” gesturing “hand motions toward his front groin genitalia area.” Defendant further acknowledged touching H.'s “butt,” although denied touching between her legs. When asked whether his own pants were down, defendant responded, “this girl is retarded, man.”


    On appeal, defendant claims the trial court erred in denying his motion to dismiss the charge of attempted second-degree sexual offense. In challenging the denial of his motion to dismiss, defendant acknowledges the evidence showed his “sexual intent” toward H., but he insists that “the State did not show that he possessed the specific intent required to commit attempted seconddegree sex offense” by overcoming H.'s resistance. Because he “stopped touching when [H.] said no,” defendant claims the evidence established only a “general assault.”
    In reviewing the trial court's denial of a motion to dismiss, this Court must determine whether, when viewed in the light most favorable to the State, the evidence at trial would permit a rational juror to find the defendant guilty beyond a reasonable doubt. See State v. Warren, 348 N.C. 80, 102, 499 S.E.2d 431, 443 (1998). “[I]f the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion even though the evidence may also support reasonable inferences of the defendant's innocence.” State v. Ford, 136 N.C. App. 634, 641, 525 S.E.2d 218, 223 (2000).
    One commits a second-degree sexual offense when he “engages in a sexual act with another person . . . [w]ho is mentally disabled, mentally incapacitated, or physically helpless, and [he] knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.” N.C.G.S. § 14-27.5 (2003). For purposes of the criminal statute, a “[s]exual act . . . means the penetration, however slight, by any object into the genital or anal opening of another person's body.” N.C.G.S.§ 14-27.1(4) (2003). Moreover, a person is “mentally disabled” if she “suffers from mental retardation . . . render[ing her] substantially incapable of . . . resisting . . . a sexual act.” N.C.G.S. § 14-27.1(1) (2003). A mentally disabled person is “statutorily deemed incapable of consenting” to a sexual act. State v. Holden, 338 N.C. 394, 406, 450 S.E.2d 878, 884 (1994). Accordingly, in the case sub judice, the State was obliged to prove only that defendant attempted to engage in a sexual act with H. with knowledge of her mental disability, not that he used or intended to use force to do so. Cf. State v. Washington, 131 N.C. App. 156, 164, 506 S.E.2d 283, 288 (1998).
    To be guilty of attempt, a defendant must have formed the specific intent to commit a second-degree sexual offense and must have “committed overt acts” in furtherance of his intent, “going beyond mere preparation but falling short of the completed offense.” State v. Mangum, 158 N.C. App. 187, 192, 580 S.E.2d 750, 754 (defining the offense of attempted rape), disc. review denied, 357 N.C. 510, 588 S.E.2d 378 (2003). As a mental process not subject to direct observation, intent may be shown “'by facts and circumstances from which it may be inferred.'” Id. (quoting State v. Banks, 295 N.C. 399, 412, 245 S.E.2d 743, 752 (1978)). “The defendant need not retain the specific intent to [commit a sexual offense] throughout the commission of the overt acts forming the basis of the charge, as long as he at any time during the attempt has [such] an intent.” Id.
In the instant case, the State adduced substantial evidence that H. had a mental disability resulting in a “substantial incapacity to resist” sexual activity. State v. Oliver, 85 N.C. App. 1, 18, 354 S.E.2d 527, 537 (1987). The evidence further showed defendant knew of H.'s disability, inasmuch as he was familiar with H. and the FIS program through his girlfriend'semployment, was specifically notified by FIS staff of the protocol for visiting a client, and described H. to police as “retarded.” We further find substantial evidence that defendant intended to engage in a sexual act with H. and took overt acts in furtherance of his intention by leading H. to a secluded location where, in the face of her repeated verbal protests, he pulled her to the ground, got on top of her, and pushed her pants to her knees for the purpose of touching her genital and rectal areas with his hand. We believe these acts give rise to a reasonable inference that defendant intended to penetrate H.'s vagina or anus digitally. Assuming defendant stopped short of committing a sexual act, whether due to a fear of discovery or the degree of H.'s distress, his conduct went beyond mere preparation and was sufficient to constitute attempt.
    No error.
    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).

Footnote: 1
    The victim's name has been reduced to an initial to protect her identity.

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