STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 05 CRS 229937,
05 CRS 229940
STEVEN BELL
Attorney General Roy A. Cooper, III, by Associate Attorney
General Olga Vysotskaya, for the State
Peter Wood, for defendant-appellant.
JACKSON, Judge.
On 28 May 2005, Samantha Mather (“Mather”) was living at the
Summit Grandview Apartments in Charlotte, North Carolina. Mather
had spent the night out with friends and returned to her apartment
at approximately 2:15 a.m. Upon entering her apartment, she locked
the door, removed her makeup, brushed her teeth, took off her
clothes, got into bed, and fell asleep. Sometime around 7:00 a.m.,
Mather woke up when she felt something on her leg. As she awoke,
she found an unknown man in her bed, under the covers and on top of
her body. She asked him “who are you and what are you doing here.”
The man replied that he was “Superman” and was there to “save” her.
Mather told the man to get off of her, and he “pushed himself upand ran his hands down [Mather's] body.” The man asked her if she
was sure she wanted him to leave. She repeated her demand for him
to leave and he walked out of the room. As he left, Mather
observed that defendant was wearing boxer shorts and a white
undershirt. Mather then heard him open the door to her apartment
and walk out. She did not hear the door fully close, so she got up
and slammed the door behind him. Mather then went back to bed.
Mather got back out of bed at around 9:00 a.m and called a
friend. She then went downstairs to the building's security desk
and spoke to the security guard. She reported that someone had
broken into her apartment and crawled on top of her in her bed.
She gave the guard a description of the man, specifically
mentioning a white birthmark in the man's hairline. The guard
responded “Oh, my God, that is the Security Guard that I relieved
this morning.” She and the guard then went to a secure room where
the emergency keys were kept and noticed that the key to Mather's
apartment was missing. Mather immediately filed a report of the
incident. A few days later, after returning from a business trip,
Mather met with Officer Craig V. Vollman (“Officer Vollman”) of the
Charlotte-Mecklenburg Police Department. Officer Vollman took a
written statement from Mather regarding the events of 28 May 2005.
On 8 June 2005, Detective Daniel McCrae (“Detective McCrae”)
of the Charlotte-Mecklenburg Police Department met with Steven Bell
(“defendant”) and questioned him regarding the incident on 28 May
2005. Initially, defendant denied entering Mather's apartment.
Detective McCrae then related that Mather had described herassailant as “a black male with a gray patch or birthmark in his
hair.” At that point, defendant removed his hat, revealing a gray
patch of hair on his head. Defendant then admitted entering
Mather's apartment. Defendant claimed that he was making his
rounds and found Mather's apartment door ajar. He pushed the door
open and yelled “Barton Security, is anyone here[?]” There was no
response, so defendant entered the apartment. He found Mather in
bed and stated that she appeared to be unconscious. He walked over
to her, put his hand on her shoulder and shook her, asking if she
was alright.
On 29 June 2005, a warrant was issued charging defendant
Steven Bell with misdemeanor sexual battery and misdemeanor
breaking or entering. On 8 November 2005, defendant was convicted
in district court on both charges. Defendant appealed the
convictions to the superior court.
The case was tried de novo at
the 24 July 2006 Criminal Session of Mecklenburg County Superior
Court, and
defendant was convicted of misdemeanor breaking or
entering and misdemeanor sexual battery. The trial court sentenced
him to sixty days imprisonment for the sexual battery charge, and
forty-five days imprisonment for breaking or entering. The trial
court suspended the sentence for breaking or entering and placed
defendant on supervised probation for twenty-four months.
Defendant appeals from his convictions.
On appeal, d
efendant argues the trial court erred in denying
his motion to dismiss the charges based upon an insufficiency of
the evidence.
We disagree.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense and of defendant's being the perpetrator. State v. Cross,
345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial
evidence is relevant evidence that a reasonable mind might accept
as adequate to support a conclusion.'” Id. at 717, 483 S.E.2d at
434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595
(1992)). When reviewing the sufficiency of the evidence, “[t]he
trial court must consider such evidence in the light most favorable
to the State, giving the State the benefit of every reasonable
inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437,
450, 439 S.E.2d 578, 585 (1994) (citing State v. Vause, 328 N.C.
231, 237, 400 S.E.2d 57, 61 (1991)).
We first consider defendant's charge for misdemeanor breaking
or entering.
North Carolina General Statutes, section 14-
54(b)(2005) provides that “[a]ny person who wrongfully breaks or
enters any building is guilty of a Class 1 misdemeanor.” Defendant
contends there was insufficient evidence as to the element of a
wrongful entry. He claims that because he was a security guard, he
was given implied consent to enter the premises. Defendant's
contentions are unpersuasive.
Mather testified that she had locked her door and did not give
defendant permission to enter her apartment. Mark Zudell
(“Zudell”), an employee of Barton Security Services, testified that
as a security guard, defendant could enter a residence only when
there was an emergency requiring their presence. Zudell furthertestified that security officers had a duty to report any such
incident, and that defendant reported no incident occurring on 28
May 2005. The morning of the incident, both Mather and the
security guard on duty observed that the emergency key to her
apartment was missing.
Thus, we hold there was sufficient evidence
for the Court to determine that defendant did not have consent,
implied or express, to enter Mather's apartment. Furthermore,
Mather's testimony regarding defendant's actions and comments
directed towards her while she was in bed, as well as the fact that
he was partially undressed, permit an inference that he entered the
premises with wrongful intent, i.e., to commit a sexual offense.
Therefore, we conclude that the trial court properly denied
defendant's motion to dismiss this charge.
We also conclude that the trial court properly denied the
motion to dismiss the sexual battery charge. North Carolina
General Statutes, section 14-27.5A provides that:
(a) A person is guilty of sexual battery if
the person, for the purpose of sexual
arousal, sexual gratification, or sexual
abuse, engages in sexual contact with
another person:
(1) By force and against the will
of the other person; or
(2) Who is mentally disabled,
mentally incapacitated, or
physically helpless, and the
person performing the act knows
or should reasonably know that
the other person is mentally
disabled, mentally
incapacitated, or physically
helpless.N.C. Gen. Stat. § 14-27.5A(a)
(2005) (emphasis added). Defendant
argues the State presented no evidence that Mather was “mentally
disabled, mentally incapacitated, or physically helpless.” Id.
However, it was not necessary that the State prove both section
14-
27.5A(a)
(1) and (2). Because these subsections are presented in
the disjunctive, proof of either subsection (1) or (2) is
sufficient to withstand a motion to dismiss. Here, we hold the
State presented sufficient evidence to prove defendant committed a
sexual battery as defined by section 14-27.5A(a)
(1)
. Mather's
testimony that defendant was on top of her, she told him to leave,
and he then proceeded to “push himself up” and “run his hands down
[Mather's] body” permit an inference that his actions were
by force
and against her will. See N.C. Gen. Stat. § 14-27.5A(a)(1).
Defendant further asserts there was no evidence that he
touched Mather for a sexual purpose.
We disagree. Mather's
testimony regarding defendant's actions and comments directed
towards her while she was in bed, as well as his state of partial
undress, permit an inference that
his actions were taken for the
purpose of sexual arousal or gratification.
Accordingly, we find
no error.
No error.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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