An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1315

NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2003

STATE OF NORTH CAROLINA

v .                         Gaston County
                            Nos. 00 CRS 28205
JOEL MICHAEL CLIETT,                00 CRS 67793
        Defendant.

    Appeal by defendant from judgment entered 30 November 2001 by Judge Marcus Johnson in Gaston County Superior Court. Heard in the Court of Appeals 12 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State.

    Belser & Parke P.A., by David G. Belser, for the defendant- appellant.

    GEER, Judge.

    Defendant Joel Michael Cliett was found guilty on 29 November 2001 of first degree sexual offense, assault with a deadly weapon, and communicating threats. On appeal, defendant challenges the trial court's instructions to the jury, the trial court's denial of his motions to dismiss, and the sufficiency of one of the indictments. We find no error in defendant's trial.

Facts
    The State's evidence tended to show the following. On the morning of 25 November 2000, the victim's boyfriend, after an argument, broke a window in the victim's trailer. Defendant offered to repair the window, but when defendant began to talkabout becoming the victim's boyfriend, she asked defendant to leave. That night, the victim fell asleep on her couch but some time after midnight awoke to find defendant on top of her with his hand pushing down on her mouth and nose so that she could not breathe. The victim struggled and screamed to her daughter to call 911. As her daughter came into the room, defendant put a knife to the victim's throat and threatened to kill the victim if the daughter attempted to leave the trailer. When the victim kept screaming, defendant hit her in the mouth to make her stop. Defendant also threatened that after he finished raping the victim, he would rape her daughter. Without defendant's knowledge, the daughter left through another door and went to a neighbor's trailer to call the police.
    Defendant hit the victim in her mouth, causing a split lip; squeezed her breast and twisted it, causing bruising; and bit the inside of her thigh. Defendant told the victim to take her underwear off or he was going to kill her children. Defendant then inserted his fingers in the victim's vagina and rectum. Defendant grabbed the victim's hair with the knife still pointed at her and forced her toward the bedrooms in search of her daughter. When defendant discovered that the daughter had escaped, he ran out of the trailer.
    Defendant, on the other hand, testified that while he had engaged in consensual sex with the victim previously, he did not have sex with the victim on the night at issue. Further, he was not carrying a knife that night and, in fact, did not own a knife. Defendant also offered the testimony of a neighbor that the victim admitted to her that she had manufactured the allegations and then asked the neighbor to lie for her. The neighbor admitted, however, on cross-examination that she saw defendant running out of the trailer on the night at issue and when she saw the victim shortly thereafter, the victim "was a mess." Other neighbors testified that defendant spent the evening with them, but reported that defendant had left for approximately 45 minutes to an hour around midnight and seemed upset when he returned.
    Defendant was charged with two counts of first degree sexual offense, first degree sexual offense against a child, first degree burglary, assault with a deadly weapon inflicting serious injury, and communicating threats. On 26 November 2001, the State dismissed one count of first degree sexual offense and the charge of first degree sexual offense against a child. At the 26 November 2001 session of Gaston County Superior Court, the jury found defendant guilty of first degree sexual offense, the lesser included offense of assault with a deadly weapon, and communicating threats. The jury found him not guilty of first degree burglary. The trial court arrested judgment as to assault with a deadly weapon and sentenced defendant to a period of 288 to 355 months for first degree sexual offense and communicating threats.
I
    Defendant first argues that the trial court committed plain error in failing to instruct the jury on the lesser included offense of second degree sexual offense. Since defendant did notrequest an instruction on second degree sexual offense and did not object to the instructions for first degree sexual offense as given, defendant urges this Court to review this issue as plain error.
    As the Supreme Court held in State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983), "[i]n deciding whether a defect in the jury instruction constitutes 'plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." Without reaching the question whether the trial court should have given an instruction on second degree sexual offense, we conclude that such an instruction would not likely have resulted in a different jury verdict.
    In North Carolina, an instruction on a lesser included offense must be given when the evidence would permit a jury to rationally find the defendant guilty of the lesser included offense and acquit him of the greater offense. State v. Larry, 345 N.C. 497, 516-17, 481 S.E.2d 907, 917, cert. denied, 522 U.S. 917, 139 L. Ed. 2d 234 (1997). "The test in every case involving the propriety of an instruction of a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements." State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322, cert. denied, 498 U.S. 871, 112 L. Ed. 2d 155 (1990).     Pursuant to N.C. Gen. Stat. § 14-27.4 (2001), the elements of first degree sexual offense include engaging in a sexual act with another person by force and against the will of the other person while using or displaying a dangerous weapon or while inflicting serious injury upon the other person. Second degree sexual offense omits the element of a dangerous weapon or infliction of serious injury. N.C. Gen. Stat. § 14-27.5 (2001).
    In this case, the jury could have reached a different verdict as to the sexual offense charge only if it concluded that defendant did not use a dangerous weapon while committing the sexual offense.   (See footnote 1)  With respect to the separate indictment for assault, the jury was given the option of finding defendant guilty of assault with a deadly weapon inflicting serious injury, assault with a deadly weapon, assault inflicting serious injury, or simple assault. The jury's decision, when presented with these choices, to find defendant guilty of assault with a deadly weapon establishes that an instruction on second degree sexual offense would not likely have resulted in a different verdict. This assignment of error is overruled.
II    
    Defendant next argues that the State failed to present substantial evidence of first degree sexual offense and assault with a deadly weapon and that the trial court therefore erred in denying his motions to dismiss. "In reviewing a motion to dismiss,the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense." State v. Stancil, 146 N.C. App. 234, 244, 552 S.E.2d 212, 218 (2001) (internal quotation marks omitted), aff'd per curiam as modified, 355 N.C. 266, 559 S.E.2d 788 (2002). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. When this Court reviews challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the State, with the State receiving the benefit of all reasonable inferences to be drawn from the evidence. State v. Compton, 90 N.C. App. 101, 103-04, 367 S.E.2d 353, 355 (1988).
    The testimony of the victim and her daughter constituted substantial evidence that defendant engaged in a sexual act with the victim by force and against the will of the victim with use or display of a knife. This evidence was sufficient to overcome defendant's motions to dismiss. Defendant's challenge to the credibility of this testimony was an issue for the jury to resolve.
    With respect to the charge of assault with a deadly weapon inflicting serious injury, the jury rejected that charge and instead found defendant guilty of the lesser included offense of assault with a deadly weapon. Any submission of the charge was, therefore, harmless absent some showing of prejudice to defendant from the submission of this charge. See State v. Williamson, 122 N.C. App. 229, 235, 468 S.E.2d 840, 845 (any error with respect tosubmission of the charge of assault with a deadly weapon with intent to kill inflicting serious injury was rendered harmless by the jury's verdict convicting defendant of a lesser included offense), disc. review denied, 344 N.C. 637, 477 S.E.2d 54 (1996); State v. Berkley, 56 N.C. App. 163, 165, 287 S.E.2d 445, 448 (1982) (any error in failing to dismiss the charge of first degree sexual offense was rendered harmless by conviction of second degree sexual offense absent showing of prejudice). Defendant has made no showing of prejudice.
    The question whether the evidence was sufficient to support the lesser included offense of assault with a deadly weapon is immaterial because the trial court arrested judgment on that charge. See State v. Abraham, 338 N.C. 315, 341 n.1, 451 S.E.2d 131, 144 n.1 (1994) ("Judgment, however, was arrested by the trial court at sentencing, thereby eliminating any prejudice . . . from the flawed indictment."); State v. Blake, 326 N.C. 31, 34, 387 S.E.2d 160, 161 (1990) ("The defendant brings forward several assignments of error. One assignment of error deals with the jury charge as to the attempted armed robbery convictions. The court arrested judgment on these two counts and any error in the charge was harmless."); State v. Scott, 150 N.C. App. 442, 456, 564 S.E.2d 285, 295 ("[T]he trial court arrested judgment on defendant's first-degree burglary charge. Thus, any error in the charge of burglary was harmless."), disc. review denied, 356 N.C. 443, 573 S.E.2d 508 (2002). This assignment of error is, therefore, overruled.
III    
    Third, defendant argues that the trial court committed plain error in failing to instruct the jury as to the identity of the deadly weapon in the charge of first degree sexual offense, citing only State v. Lotharp, 148 N.C. App. 435, 559 S.E.2d 807 (2002). The Supreme Court, however, only four days before defendant's brief was filed, reversed Lotharp for the reasons stated in the dissenting opinion. State v. Lotharp, 356 N.C. 420, 571 S.E.2d 583 (2002) (per curiam).
    In Lotharp, the majority held that the trial court erred in instructing a jury with respect to assault with a deadly weapon inflicting serious injury by failing to "require the jury to specify whether it found the chain or defendant's hands and feet, or all three, to be deadly weapons . . . ." 148 N.C. App. at 443, 559 S.E.2d at 812. This concern is identical to defendant's argument here that the trial court should have required that the jury decide unanimously whether the deadly weapon was the knife or defendant's hands. Judge Timmons-Goodson's dissent as adopted by the Supreme Court holds, however:
        The disjunctive used in the instructions . . . allowed the jury to choose between two alternative instrumentalities as the deadly weapon inflicting serious injury. Thus, the jury could find that defendant inflicted serious injury upon the victim by assaulting him with either his hands and feet or the chain. The instructions clearly required the jury to find that defendant assaulted the victim using a deadly weapon, thereby inflicting serious injury. Accordingly, there was no ambiguity as to whether or not the jury unanimously found each necessary element for the crime of assault with a deadly weaponinflicting serious injury under N.C. Gen. Stat. § 14-32(b). Because the instructions in the instant case allowed the jury to convict defendant of a single wrong by alternative means . . ., I conclude that the instructions were not fatally ambiguous, and I would therefore hold that the trial court committed no error.

Id. at 447, 559 S.E.2d at 814 (emphasis original). Since the Lotharp dissent as adopted by the Supreme Court controls, this assignment of error is overruled.
IV    
    Finally, defendant challenges the short-form indictment used to charge defendant with first degree sexual offense. Defendant acknowledges that the indictment in this case complies with N.C. Gen. Stat. § 15-144.2(a) (2001) (specifying what must be alleged in indictments charging first degree sexual offense) and that this Court and our Supreme Court have upheld the constitutionality of such indictments. Nevertheless, defendant contends that these prior holdings should be overruled in light of Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556 (2002). Our Supreme Court has, however, recently rejected this argument in State v. Hunt, 357 N.C. 257, 582 S.E.2d 593, cert. denied, __ U.S. __, __ L. Ed. 2d __, 2003 U.S. LEXIS 5421 (Sept. 11, 2003) and reaffirmed those prior decisions.
    No error.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).


Footnote: 1
     The jury refused to find that defendant inflicted serious injury.

*** Converted from WordPerfect ***