State v. Najjar
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure. NO. COA13-204 NORTH CAROLINA COURT OF APPEALS Filed: 17 September 2013 STATE OF NORTH CAROLINA v. Guilford County No. 09 CRS 87053 JAMAL MOHAMMAD AL NAJJAR Appeal by defendant from judgment entered 14 September 2012 by Judge Court. William Z. Wood, Jr., in Guilford County Superior Heard in the Court of Appeals 9 September 2013. Attorney General Roy Cooper, by Assistant Attorney General M. Lynne Weaver, for the State. J. Darren Byers for defendant appellant. McCULLOUGH, Judge. Defendant Jamal Mohammad Al Najjar appeals from a judgment consistent with a jury verdict finding him guilty of sexual battery. For the following reasons, we find no error. The State s evidence tended to show that in July 2009, defendant and his business partner, Mr. Asad Alhmouz, owned a hookah bar in Greensboro, North Carolina. Seventeen-year-old D.A., who had spent time at the hookah bar with her friends, -2asked Mr. Alhmouz if he needed additional help at the bar, as she was looking for a summer job. Mr. Alhmouz acknowledged that he needed help, so he hired D.A. On 23 July 2009, after working a couple of days, Mr. Alhmouz told D.A. to call defendant about her work schedule for the day. Defendant informed D.A. that she needed to come to work early, around 4:00 p.m., because the hookah bar was hosting a party that night. After D.A. received a ride to work from a girlfriend, she helped defendant unload drinks from the trunk of his car. When they finished, defendant gave D.A. a sideways hug and told her to be careful[] you might pop them. two-button polo shirt, asked D.A., who was wearing a defendant what he meant. Defendant stated, they re big. They can pop. D.A. responded, I m only 17. D.A. then Leave me alone, you know, I m here to work. started to wash ashtrays at the sink when defendant came behind her, turned her around, and held her down. Defendant proceeded to grab D.A. s breasts, kiss her, and tell her he could take care of [her] with cars and money[.] D.A. testified, [a] 50-year-old man s tongue down a 17-yearold s throat. It s just disgusting. And I tried to push him off of me[.] D.A. finally wiggled out of defendant s grasp and stated that she needed to take out the trash. -3D.A. took a few boxes to the dumpster located behind the hookah bar, then called three friends. Upon returning to the bar, D.A. told defendant she needed to go to the hospital because her mother just called to tell her that D.A. s brother was in a motorcycle accident. D.A. made up a story so [defendant] wouldn t be suspicious as to why [she] was upset and why [she] needed to leave. D.A. waited outside for her three friends. When her friends arrived, they drove her across the street to a gas station where she called the police. Afterwards, D.A. did not return to the hookah bar, and did not pick up her pay check because she didn t want it. D.A. testified that defendant did not ask her to clean the hookah bar bathroom and, if he had, she would have cleaned it. Defendant denied touching D.A. or making suggestive statements to her. Defendant testified that he had instructed D.A. bathroom to clean the and that she had refused; that defendant told D.A. that if she did not clean the bathroom, he did not need her help; that D.A. begged defendant not to fire her because she needed the money to pay bills; and that D.A. left shortly thereafter, saying that her brother had been in a motorcycle accident. -4At the charge conference, defendant objected to the trial court s inclusion of for the purpose of sexual arousal in its instruction on sexual battery. The trial court overruled defendant s objection and instructed the jury in pertinent part: So if you find from the evidence, beyond a reasonable doubt, that on or about the alleged date the defendant engaged in sexual contact; that is, touched the breast of another person; that when he did so, the defendant acted for the purpose of sexual arousal or sexual gratification; and that this contact was by force and against the will of the other person, then it would be your duty to return a verdict of guilty. The jury found defendant guilty of sexual battery. The trial court sentenced defendant to sixty days in the custody of the Guilford County Sheriff s Department, suspended the sentence and placed him on supervised probation for twenty-four months. Defendant appeals. Defendant contends the trial court erred in instructing the jury that it could find [him] guilty of sexual battery if [defendant] acted for the purpose of sexual arousal when there was no evidence in support of that theory. The issue of jury instructions We disagree. is a matter within the trial court s discretion and will not be overturned absent a showing of abuse of discretion. State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152 (2002). The elements of sexual -5battery are: (1) engaging in sexual contact with another person, (2) by force and against the will of the other person, and (3) for the purpose sexual abuse. of sexual arousal, sexual gratification, N.C. Gen. Stat. ยง 14-27.5A (2011). or Our Supreme Court has stated that sexual arousal may be inferred from the evidence of the defendant s actions. State v. Rhodes, 321 N.C. 102, 105, 361 S.E.2d 578, 580 (1987). Here, the victim testified that defendant hugged her while making suggestive comments to her, then held her down, grabbed her breasts, kissed her, and put his tongue down [her] throat. This testimony from the victim is sufficient for the jury [to] infer that [the] defendant s action . . . was for the purpose of arousing or gratifying his sexual desire. N.C. App. 547, 551, 369 S.E.2d 95, 98 State v. Bruce, 90 (1988) (discussing a charge of taking indecent liberties with a child which includes the element for the purpose of arousing or gratifying sexual desire ). evidence purpose We conclude defendant s actions provided sufficient from of which sexual the jury arousal, could and infer therefore, instruction on sexual battery was proper. is without merit. No error. he the acted trial for the court s Defendant s argument -6Judges HUNTER (Robert C.) and BRYANT concur. Report per Rule 30(e).
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