STATE OF NORTH CAROLINA
v. Robeson County
No. 00 CRS 011314
CLARENCE ELWELL MCEACHIN
Attorney General Roy Cooper, by Assistant Attorney General
David Gordon, for the State.
Moser, Schmidly, Mason & Roose, by Richard G. Roose, for
defendant-appellant.
CALABRIA, Judge.
Defendant Clarence Elwell McEachin was charged with first
degree rape and taking indecent liberties with a child. According
to the State's evidence, a twelve-year-old female (the victim) was
an overnight guest in defendant's home on the evening of 20 May
2000. Defendant, a fifty-eight-year-old male, was previously
married to the victim's maternal aunt, and his daughter was the
victim's cousin. The victim decided to spend the night at
defendant's house so that his daughter could fix the victim's hair.
The next morning, Sunday, 21 May 2000, the victim, defendant'sdaughter and several other girls, who also had spent the night at
defendant's house, went to church then went for a walk. When the
victim's feet began to hurt during the walk, she returned to
defendant's house alone and found defendant was at home. The
victim asked defendant for ten dollars for a perm, and he gave it
to her. When defendant left the house, the victim then went to
take a nap.
The victim was subsequently awakened and found defendant lying
on top of her. Her skirt had been pulled up and her panties pulled
down. The victim testified that she felt his penis inside of her
vagina, and she felt pressure between the lips of her vagina. She
also stated she told defendant to get off of her and pushed him.
When defendant stood up, the victim testified his pants and boxers
were at his ankles, and she could see his penis lying down on his
leg. The victim immediately got off of the bed, straightened her
clothing and ran to the front door of the residence. Defendant
tried to shut the door, telling the victim he would give her $100
if she did not tell. The victim, however, pushed open the door and
ran to defendant's mother's house.
Two of defendant's brothers took the victim to her aunt's
house, where she telephoned her mother to tell her about
defendant's actions. The victim's mother subsequently took the
victim to the hospital for an examination, and she spoke to several
police officers while there. The victim testified that at no time
did she give defendant permission to touch her or to have sex with
her; nor had she promised him anything in return for the tendollars he had given her.
During the investigation of the incident, Officer Andrew
Powell (“Officer Powell”) of the Lumberton Police Department
interviewed defendant. Defendant gave Officer Powell a statement
and admitted he attempted vaginal intercourse with the victim, but
noted that his penis would not remain erect. Defendant did not
think his penis was “hard enough” to penetrate the victim's vagina.
Defendant stated that the sexual contact was consensual and told
the officer he ejaculated onto the victim's leg and stomach area.
At trial, defendant testified in his own defense, and denied
having any sexual contact with the victim. He testified on direct
examination that he never told Officer Powell he had sex with the
victim. However, on cross-examination he admitted telling Officer
Powell he tried to have intercourse with the victim, because the
officer kept asking him the same thing over and over.
At the conclusion of the presentation of the evidence, the
trial court instructed the jury on the offenses charged, and over
the objection of defendant, submitted the lesser included offense
of attempted first degree rape. The jury found defendant guilty of
attempted first degree rape and taking indecent liberties with a
child. The trial court consolidated the offenses for judgment, and
sentenced defendant to a minimum term of 125 months and a maximum
term of 159 months in the North Carolina Department of Correction.
Defendant appeals.
Defendant assigns as error the trial court's submission of the
lesser included offense of attempted first degree rape. Specifically, defendant contends that the evidence was unequivocal
as to penetration and did not support the submission of the subject
lesser included offense. We disagree.
North Carolina law provides that “[a] person is guilty of rape
in the first degree if the person engages in vaginal intercourse .
. . [w]ith a victim who is a child under the age of 13 years and
the defendant is at least 12 years old and is at least four years
older than the victim.” N.C. Gen. Stat. § 14-27.2 (2001). To
convict a defendant of attempted first degree rape of a child, “the
State must show that the victim was twelve years old or less, the
defendant was at least twelve years old and at least four years
older than the victim, that the defendant had the intent to engage
in vaginal intercourse with the victim, and that the defendant
committed an act that goes beyond mere preparation but falls short
of actual commission of intercourse.” State v. Gregory, 78 N.C.
App. 565, 571, 338 S.E.2d 110, 114 (1985). “The slightest
penetration of the female sex organ by the male sex organ is
sufficient to constitute vaginal intercourse within the meaning of
the statute.” State v. McNicholas, 322 N.C. 548, 556, 369 S.E.2d
569, 574 (1988).
Generally, “'a trial court must give instructions on all
lesser-included offenses that are supported by the evidence.'”
State v. Ray, 149 N.C. App. 137, 145, 560 S.E.2d 211, 217 (2002),
aff'd, ___ N.C. ___, ___ S.E.2d ___ (2003) (quoting State v.
Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807, 819 (2000)). More
specifically, “[i]nstructions on the lesser included offenses offirst degree rape are warranted only when there is some doubt or
conflict concerning the crucial element of penetration.” State v.
Wright, 304 N.C. 349, 353, 283 S.E.2d 502, 505 (1981). If the
State's evidence is clear and unequivocal as to each element of the
offense charged, the trial court should not submit the lesser
offense to the jury. State v. Taylor, 79 N.C. App. 635, 636, 339
S.E.2d 859, 860 (1986).
While the victim's testimony tends to show that defendant did
sufficiently penetrate her vagina with his penis to constitute
vaginal intercourse within the meaning of G.S. § 14-27.2, the
testimony of Officer Powell regarding the statement made by
defendant during an interview tends to show otherwise. Officer
Powell testified defendant told him:
I got over [the victim] and she was laying
down, and attempted to penetrate her vagina,
but my erection penis would not stay hard
because I was afraid we would get caught. I
don't think my penis got hard enough to
penetrate. But, I did get aroused enough that
I did discharge, but it was all over her leg
and stomach area.
Contrary to defendant's argument, the evidence here is equivocal as
to the element of penetration so as to warrant an instruction on
attempted first degree rape. Therefore, this assignment of error
is overruled.
Defendant has failed to bring forth his remaining assignments
of error and they are, therefore, taken as abandoned. N.C.R. App.
P. 28(b)(6) (2003). In light of the foregoing, we hold that
defendant received a fair trial, free from prejudicial error.
No error.
Judges MARTIN and McCULLOUGH concur.
Report per Rule 30(e).
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