A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA02-126


Filed: 3 September 2002


         v.                        Onslow County
                                No. 00 CRS 54895

    Appeal by defendant from judgment entered 13 September 2001 by Judge Russell J. Lanier, Jr. in Superior Court, Onslow County. Heard in the Court of Appeals 26 August 2002.

    Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper, for the State.

    Ellis, Hooper, Warlick & Morgan, L.L.P., by Deke S. Owens, for defendant-appellant.

    WYNN, Judge.

    Defendant was found guilty of second degree rape and was sentenced to a minimum term of 107 months and a maximum term of 138 months.
    The State presented evidence tending to show that on 16 May 2000, defendant saw the prosecuting witness, with whom he had formerly shared a residence with two other people, walking down the road with a friend. Defendant asked the prosecuting witness to go for a ride with him. Defendant assured the prosecuting witness that he would return her to the Trade Mart convenience store where her friend would be waiting. The prosecuting witness agreed to go for a ride with defendant. The prosecuting witness thought defendant would drive just “around the circle”; however, defendantdrove to a place that was unfamiliar to the prosecuting witness. Defendant parked the vehicle and asked the prosecuting witness to have sex with him. She refused. Defendant pushed her down in the seat, removed her underwear and shorts, held her down with one hand, and forced her to have sexual intercourse. After completing intercourse, he brought her back to the Trade Mart convenience store.
    Later that evening her stomach began to hurt. She and her friend went to the hospital, where a rape kit was administered to her. At the hospital the prosecuting witness spoke to Detective Steven Jeffrey Geisinger. She told him that defendant made sexual advances towards her and that she told defendant she was not interested in having sex with him. She asked defendant to take her back to the Trade Mart but defendant did not, instead taking her to the park. Defendant continued to make sexual advances towards her and she continued to state that she was not interested. Defendant pushed her over to the side, removed her clothing and his clothing, held her down on her side, and had vaginal intercourse with her.
    The emergency room nurse who collected the evidence for the rape kit testified that no evidence of scratches, marks or trauma was found. However, semen was found in her crotch.
    Defendant initially denied knowing the prosecuting witness. Subsequently, he stated and testified at trial that he and the prosecuting witness engaged in consensual vaginal intercourse.
    The sole issue on appeal is whether the trial court erred by denying defendant's motion to dismiss at the close of all theevidence.
     Upon a motion to dismiss, a trial court must determine whether there is substantial evidence (1) of each essential element of the charged offense and (2) of perpetration of the offense by the defendant. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). The court must view the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The defendant's evidence is to be disregarded except to the extent it explains, clarifies or is consistent with the State's evidence. State v. Furr, 292 N.C. 711, 715, 235 S.E.2d 193, 196, cert. denied, 434 U.S. 924, 54 L. Ed. 2d 281 (1977). In evaluating the evidence, the court is to determine only whether the evidence is sufficient to allow the jury to draw a reasonable inference of the defendant's guilt of the crime charged. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
To convict a defendant of second degree rape in violation of N.C. Gen. Stat. § 14-27.3, it must be shown that the defendant “engaged in vaginal intercourse with another person by force and against the will of the other person.” State v. Scott, 323 N.C. 350, 353, 372 S.E.2d 572, 575 (1988); see also N.C.G.S. § 14-27(3) (2002). Defendant contends the evidence in the present case is insufficient to prove the element of “by force.” We disagree.
    The force necessary to establish second degree rape may be in the forms of actual physical force or constructive force. State v.Brown, 332 N.C. 262, 420 S.E.2d 147 (1992). Actual physical force consists of the application of force to the body. Scott, 323 N.C. at 354, 372 S.E.2d at 575. Constructive force consists of obtaining submission by threats, fear, fright or other actions. State v. Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987).
    Here, the evidence viewed in the light most favorable to the State shows that defendant transported the victim, captive in his vehicle, to a strange and unfamiliar place. After the victim spurned his repeated sexual advances, he pushed her down, removed her clothing, and while holding her down, engaged in sexual intercourse with her. She attempted to resist by pushing defendant away. She was eight and one-half months pregnant at the time and she was afraid to fight defendant because of fear of harming her unborn baby.
    We conclude the foregoing evidence is sufficient to establish both physical and constructive force. We hold the trial court properly denied the motion to dismiss.
    No error.
    Judges McGEE and CAMPBELL concur.
    Report per Rule 30(e).

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