An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1145


Filed: 20 May 2003


         v.                        Robeson County
                                No. 00 CRS 011314


    Appeal by defendant from judgment entered 6 March 2002 by Judge Robert F. Floyd, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 19 May 2003.

    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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