An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-787


Filed: 3 June 2003


v .                         New Hanover County
                            No. 00 CRS 20914-5

    Appeal by defendant from judgments entered 5 October 2001 by Judge Ernest B. Fullwood in New Hanover County Superior Court. Heard in the Court of Appeals 15 May 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Roy A. Giles, Jr., for the State.

    William D. Spence for defendant.

    TYSON, Judge.

    Ricky Thomas Foster (“defendant”) appeals from judgment entered upon jury convictions of second degree rape and second degree sexual offense. Defendant was sentenced as a prior record level VI felon to two consecutive terms of 135 to 171 months. We find no error.

I. Background
    On the evening of 5 October 2000, K.G. (“victim”), an eighteen-year-old female, shopped for groceries at a Carolina Beach supermarket. As the victim was leaving the store, defendant and another male approached and asked her for a ride to Carolina Beach State Park. Defendant offered to pay the victim in beer or money for the ride. The victim agreed.     The victim drove defendant and his friend to the back of the supermarket where several boxes of beer were loaded into the victim's car, and drove to the park. The victim parked at the park's entrance because the gate was locked. Defendant asked the victim to help them carry the beer from the gate to their campsite area. The walk took approximately ten minutes. After reaching the campsite, the victim informed defendant that she needed to return to her car. Defendant offered to walk the victim to her car. The victim declined, but defendant insisted.
    The victim and defendant started the hike back to the car. Approximately halfway between the campsite and the car, defendant pushed the victim off of the dirt road leading to the gate, grabbed her throat, and dragged her into the woods. The victim screamed for help, but defendant threatened to kill her if she continued. Defendant forced the victim to the ground and pulled down her “skort” and panties. While defendant performed oral sex on the victim, the victim managed to push defendant off of her and run. Defendant caught up with the victim and pushed her to the ground. The victim sat on defendant's face at his request, but refused his request to touch his privates or to perform oral sex on him. The victim managed again to escape and ran, but defendant caught up with her. Defendant raped the victim for approximately ten seconds before she escaped again. The victim ran out of the woods through a yard to a house. The homeowners, Ranger Jeff Davis and his wife, responded to the victim's knocking at the door. The victim was carrying a black flip-flop sandal, and her arm was through a leg ofher “skort.” The victim explained to the Davises what had happened to her. The Davises contacted local law enforcement.
    Carolina Beach Police Officer Anthony Marcucilli (“Marcucilli”) observed defendant “crouching down by some shrubbery” on Bridge Barrier Road. As Marcucilli passed by, defendant ran into the woods. Marcucilli ordered defendant to stop running. Defendant was handcuffed and arrested. Marcucilli transferred defendant to the custody of New Hanover County Sheriff Detective Kenneth Murphy (“Murphy”).
    Murphy removed Marcucilli's handcuffs from defendant and recuffed him. Murphy detained defendant in the back of his patrol car for about twenty minutes. During this time, Murphy questioned defendant about his name, date of birth, social security number and address. Murphy drove defendant to the area where the incidents occurred and remained there for approximately thirty to forty minutes. Defendant tried to lay down in the back seat of the patrol car several times. Defendant asked Murphy what was happening. Murphy would not disclose anything, but he informed defendant that if he needed to make a statement, he could give one to Lieutenant McMahon or Detective Floyd. Murphy drove defendant to the New Hanover County Sheriff's Department where McMahon advised defendant of his Miranda rights. Defendant waived his Miranda rights.
    On 2 January 2001, defendant was indicted for second degree sexual offense and second degree rape of the victim. On 26 March 2001, defendant was indicted for the attempted murder of the victimand for being an habitual felon.
    Defendant's trial began on 1 October 2001. In addition to the testimony of the victim and officers involved, Judith Tipton (“Tipton”) testified that in June 2000, defendant asked her for a ride, lured her to an isolated spot, performed oral sex upon and raped her. The trial court allowed this testimony into evidence to show defendant's intent. At the close of the State's evidence, the trial court dismissed the attempted murder charge. Defendant offered testimony of James Monroe Waddell, II, to rebut the allegations of Tipton.
    The jury found defendant guilty of second degree sexual offense and second degree rape. Defendant stipulated to being an habitual felon. Defendant appeals.
II. Issues
    Defendant assigns and argues the trial court: (1) committed plain error in refusing to suppress defendant's statements to Murphy, (2) committed plain error in charging the jury on flight, (3) erred in failing to dismiss the charges against defendant for insufficiency of the evidence to sustain a conviction, (4) erred in allowing the State to introduce the testimony of Tipton, and (5) erred by refusing to charge on the lesser included offense of attempted second degree rape, attempted second degree sex offense, and assault on a female.
III. Murphy's testimony
    Defendant assigns the admission into evidence of Murphy's voluntary statement about an alleged statement made by defendant toMurphy as reversible error. Defendant argues plain error to the admission of Murphy's testimony in his brief.
    We review this issue for reversible error as alleged in defendant's assignments of error. Defendant's counsel objected at trial and properly preserved the error for appeal. Defendant contends that the statement given to Murphy was not voluntary and in violation of his Miranda rights.
    To admit defendant's statement before Miranda warnings were given, the trial court must find the statement voluntarily and understandably made and not the product of a custodial interrogation. There is no evidence that Murphy interrogated defendant or even tried to evoke an incriminating response from him. According to Murphy, he told defendant that if he needed to make a statement, he would need to see McMahon or Floyd. Although defendant argues he was sleepy and intoxicated, defendant has failed to show that his condition coupled with being held in the back of a police car, are “'likely to elicit an incriminating response'” from defendant. See State v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000) (quoting Rhodes Island v. Innis, 446 U.S. 291, 302, 64 L. Ed. 2d 297, 308 (1980)), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). Defendant's statement was purely voluntary. The trial court did not err in admitting the testimony regarding that statement.
IV. Plain Error and Instruction on Flight
    Defendant concedes that he failed to object at trial to the trial court's instruction to the jury on flight. We review thisassignment of error under a plain error standard.
        Plain error analysis is applied when our review of the entire record reveals that the alleged error is a fundamental error so prejudicial that justice cannot have been done. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). To prevail, the “'defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.'” State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)), cert. denied, 531 U.S. 1019, 148 L. Ed. 2d 498 (2000).

State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, __ (2003).
To instruct a jury on defendant's flight, there must be “some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.” State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-34 (1990)(quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)). We find evidence in the record supporting flight. Marcucilli witnessed defendant “crouching down by some shrubbery” and “dart[ing] . . . into the woods” after Marcucilli's car passed. We do not find, given the entire record, that the instruction is plain error. Defendant has not shown that absent such instruction the jury would have returned a different verdict.
V. Sufficiency of the Evidence
    A trial court determines whether the evidence is legally sufficient to support a verdict of guilty of the offense charged when ruling on a defendant's motion to dismiss.
        Upon a motion to dismiss in a criminal prosecution, the trial court must view the evidence in the light most favorable to thestate, giving the state the benefit of every reasonable inference that might be drawn therefrom. State v. Witherspoon, 293 N.C. 321, 237 S.E. 2d 822 (1977). The trial judge must decide if there is substantial evidence of each element of the offense charged. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 265 S.E. 2d 164 (1980).

State v. Etheridge, 319 N.C. 34, 47, 352 S.E.2d 673, 681 (1987).
    Defendant contends that the evidence against him only arouses a “suspicion” and is not substantial evidence to sustain a conviction of second degree rape or second degree sex offense. See State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983). Defendant asserts the testimony of the victim was inherently incredible.
    A jury determines the weight and credibility of a witness's testimony except where a witness's “testimony is inherently incredible and in conflict with the physical conditions established by the State's own evidence.” State v. Begley, 72 N.C. App. 37, 43, 323 S.E.2d 56, 60 (1984). Defendant argues that the victim's testimony compared with her prior statement evidences an ambiguity whether any vaginal penetration actually occurred. Both of the victim's statements state that some penetration occurred. We do not find the victim's testimony so “inherently incredible” to exclude it from the jury's consideration because her two statements were not identical.
    The unsupported testimony of a victim in a rape or sex offense case is sufficient to require submission of the case to the jury. State v. Newman, 308 N.C. 231, 237, 302 S.E.2d 174, 179 (1983); State v. Denny, 294 N.C. 294, 299, 240 S.E.2d 437, 440 (1978);State v. Vincent, 278 N.C. 63, 64, 178 S.E.2d 608, 609 (1971). Ambiguities and inconsistencies of a witness's testimony with prior statements or conduct are for the jury to resolve. Defendant's assignment of error is overruled.
VI. Tipton's Testimony as 404(b) Evidence
    Defendant assigns error to the trial court's admission of Tipton's testimony. Tipton testified that defendant approached her in June 2000, asked her for a ride, lured her to an isolated spot, performed oral sex upon her, and raped her. The trial court admitted this testimony after a voir dire hearing was conducted for the limited purpose of showing intent, common plan, and lack of the victim's consent.
    Rule 404(b) allows evidence of “other crimes, wrongs, or acts” for proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident.” N.C.G.S. § 8C-1, Rule 404(b) (2001). Rule 404(b) is a “rule of inclusion of relevant evidence of other crimes, wrongs, or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis in original). Given the similarities described by Tipton to the victim's incident, the trial court did not abuse his discretion in admitting the evidence for Rule 404(b) purposes. See State v. Hyatt, 355 N.C. 642, 662, 566 S.E.2d 61, 74 (2002), cert. denied, __ U.S. __, 154 L. Ed. 2d823 (2003). This assignment of error is overruled.
VII. Lesser Included Offenses
    Defendant assigns error to the trial court's failure to instruct on the lesser included offenses of assault on a female and attempt.
A. Assault on a Female Instruction
    Our Supreme Court has held that assault on a female is not a lesser included offense of rape. State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 363, 370 (1988). Defendant has failed to distinguish the facts at bar from those above to justify departure from this holding.
    As to the charge of second degree sexual assault, the test for determining whether one criminal offense is a lesser included offense of a greater criminal offense is whether “[a]ll of the essential elements of the lesser crime [are] essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense.” State v. Hudson, 345 N.C. 729, 733, 483 S.E.2d 436, 439 (1997).
    Defendant contends that the age requirements for a charge of assault on a female is nonessential. This Court found the age element essential in State v. Love, 127 N.C. App. 437, 439, 490 S.E.2d 249, 251 (1997), holding that the age element of the crime of assault on a female precluded it from being a lesser included offense of taking indecent liberties with a minor. We find this reasoning persuasive and hold that assault on a female is not alesser included offense of second degree sexual offense.
    The evidence presented supported each element of the charges against defendant to preclude an instruction on assault on a female. See State v. Barnes, 56 N.C. App. 515, 289 S.E.2d 580, reversed on other grounds, 307 N.C. 104, 296 S.E.2d 291 (1982). We overrule this assignment of error.
B. Attempt
    Defendant assigns error to the trial court's failure to instruct on the lesser included offense of attempt for the crime of second degree sexual offense and second degree rape. Defendant's statements supported his position that he did not commit the crime, and the victim's testimony supported the State's position that defendant committed the crime. The jury could properly infer only one of two conclusions, either defendant committed the charged crime or he did not. Defendant cites one of the victim's statements out of context to support an instruction on attempt. When the evidence is viewed in its entirety, it becomes clear that the trial court did not err in failing to instruct on attempt. See State v. Brown, 332 N.C. 262, 274, 420 S.E.2d 147, 154 (1992) (stating “Having reviewed the evidence introduced at trial, we are convinced that all of the evidence tended to show that, if the defendant committed any crime at all, he committed the crime of second-degree sexual offense for which he was tried. In such situations, the trial court must refuse to charge on lesser included offenses.”) We find the evidence at trial supported defendant's commission of the crime. This assignment of error isoverruled.
VIII. Conclusion
    We have reviewed all of defendant's assignments of error, arguments, and precedents cited in support thereof. We find no prejudicial error.
    No Error.
    Judges McGEE and CALABRIA concur.
    Report per Rule 30(e).

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