An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-333

Filed: 20 April 2004


         v.                        Beaufort County
                                No. 00 CRS 50661

    Appeal by defendant from judgment entered 15 November 2001 by Judge Thomas D. Haigwood in Beaufort County Superior Court. Heard in the Court of Appeals 15 March 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General James A. Wellons, for the State.

    Jarvis John Edgerton, IV, for defendant-appellant.

    LEVINSON, Judge.

    Defendant (Billy Ray Brown) appeals from conviction and judgment for attempted second degree rape. We conclude that defendant received a fair trial, free of prejudicial error.
    Defendant was indicted on 25 September 2000 for attempted second degree rape. Defendant entered a plea of not guilty, and the matter was called for trial at the 13 November 2001 criminal session of Beaufort County Superior Court. At trial, the State presented the testimony of the victim (hereinafter referred to as R.T.) whose testimony is summarized as follows: On 11 September 2000, R.T. was at home with her two-year-old son. At approximately 2:30 p.m., defendant showed up at R.T's house, dressed in a t-shirt, a pair of “real, real thin” jogging shorts, and sandals, and inquired as to the whereabouts of R.T.'s uncle. After R.T. informed defendant that she did not know where her uncle was, defendant asked R.T. for her husband's phone number. While R.T. was retrieving the number, defendant entered her home and closed the front door without being invited to do so.
    Once in the residence, defendant asked permission to use R.T.'s restroom. Defendant entered R.T.'s bathroom and, without fully closing the door, began urinating. When defendant exited the bathroom, R.T. “noticed that his penis was hard.” Defendant then walked into the kitchen, stood directly in front of R.T. at a distance of approximately three feet, and began “rubbing on his penis” through his shorts with his hand. As he was doing this, defendant asked R.T. several sexually-oriented questions, which she declined to answer. R.T. then told defendant that “it was time for him to leave.” Instead of leaving, defendant asked to use the bathroom again. R.T. told him that he could, and defendant again proceeded to go into the bathroom and urinate without fully closing the door. This time, however, defendant began calling for R.T. to come into the bathroom. R.T became worried and attempted to call her father on the telephone.
    Before R.T. could finish dialing, defendant ran out of the bathroom, knocked the phone out of her hand, and pushed her against a wall. Defendant put his hand around R.T's neck and told her to “shut up” when she asked him to stop. Defendant then “pulled [R.T's] head against his” and tried to kiss her. R.T. testifiedthat “at that time [she] smelled alcohol on him[.]” R.T. resisted defendant's advances and requested that he not “do this” in front of her son. In response, defendant asked R.T. if she wanted “to take it back there in the back room[.]” R.T. “told [defendant] no because [she] did not want him[.]” After being rebuffed, defendant “used his weight to push against [R.T.] on the bar [in her kitchen]”, partially ripped her shirt, touched her breasts, and commented that she had “filled out.”
    With R.T fighting and screaming, defendant threw her to the floor. Defendant then sat on R.T.'s legs, pinned her down such that she was facing him, and struck her in the face. R.T. continued to resist defendant as he unbuttoned and unzipped her jeans and “pulled out his penis.” R.T. testified that, although she never actually saw defendant's penis, she felt it touch her stomach. Finally, R.T. kicked defendant between his legs, and he absconded.
    Defendant took the stand in his defense and testified that, when he visited R.T.'s house on the afternoon of 11 September 2000, he merely had a conversation with R.T. He denied ever rubbing his penis, having “an erection or a slight erection[,]” making sexual comments to R.T., or attempting to force himself upon R.T. in any way. Defendant specifically denied trying to kiss R.T., ripping her shirt, touching her breasts, throwing her to the ground, hitting her in the face, unfastening her jeans, and exposing his penis to R.T. at any time.
    Defendant requested that the jury be instructed that it couldconvict him of assault on a female as an alternative to attempted second degree rape. The trial court denied this request and submitted only the verdicts of guilty of attempted second degree rape and not guilty to the jury. The jury returned a verdict of guilty, and the trial court sentenced defendant to a term of fifty- eight to seventy-nine months imprisonment.
    Defendant appeals this conviction and judgment by way of a petition for a writ of certiorari granted by this Court on 3 May 2002. Relying on N.C.G.S. § 15-144.1, defendant argues on appeal that the trial court erred in failing to instruct the jury as to assault on a female as an alternative to attempted second degree rape. We find no error.
    N.C.G.S. § 15-144.1(a) (2003) provides:
        In indictments for rape it is not necessary to allege every matter required to be proved on the trial; but in the body of the indictment, after naming the person accused, the date of the offense, the county in which the offense of rape was allegedly committed, and the averment “with force and arms,” as is now usual, it is sufficient in describing rape to allege that the accused person unlawfully, willfully, and feloniously did ravish and carnally know the victim, naming her, by force and against her will and concluding as is now required by law. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for rape in the first degree and will support a verdict of guilty of rape in the first degree, rape in the second degree, attempted rape or assault on a female.

(emphasis added). “In enacting G.S. [§] 15-144.1 the legislature prescribed a new form of indictment for rape. Prior to this enactment it was necessary that an indictment for rape containallegations of every element of the offense.” State v. Lowe, 295 N.C. 596, 603, 247 S.E.2d 878, 883 (1978). G.S. § 15-144.1 makes “short-form” indictments available in rape cases. Id. at 600, 247 S.E.2d at 881.
    This Court has held that under a short-form indictment for second degree rape a defendant is “subject to trial and conviction for second degree rape on all theories and on all lesser included offenses or charges pursuant to [G.S.] § 15-144.1 which may be included under any theory and supported by the evidence.” State v. Hatcher, 117 N.C. App. 78, 85, 450 S.E.2d 19, 24 (1994) (holding that where a defendant was indicted and tried for second degree rape and the trial court did not submit the “lesser included offense” of attempted second degree rape and the “offense” of assault on a female to the jury, defendant was not acquitted of the latter offenses by virtue of a mistrial due to a hung jury). The import of Hatcher is that where “supported by the evidence”, assault on a female may be submitted to the jury “pursuant to [G.S.] § 15-144.1” on an indictment for second degree rape, notwithstanding that assault on a female is not a lesser included offense of second degree rape. Id; see State v. Wortham, 318 N.C. 669, 672, 351 S.E.2d 294, 296-97 (1987) (“[A]ssault on a female is not a lesser included offense of attempted second degree rape because the assault offense contains essential elements which are not contained in the attempted rape offense.”); State v. Nicholson, 99 N.C. App. 143, 146, 392 S.E.2d 748, 750-51 (1990) (applying Wortham).     We note that G.S. § 15-144.1(a), by its strict terms, addresses only “indictments for rape”, and that Hatcher dealt with an indictment for second degree rape. The parties have not pointed us to, nor have we found, any authority which holds that an indictment for attempted second degree rape will support a verdict of guilty of assault on a female. We need not squarely address this issue in this appeal, however, as even if G.S. § 15-144.1(a) and Hatcher permit a trial court to submit assault on a female to a jury pursuant to an indictment for attempted second degree rape, the evidence in the present case does not warrant such an instruction.
    A defendant is not entitled to an instruction on a “lesser offense” unless “the evidence 'would permit a jury rationally to find [defendant] guilty of the lesser offense and acquit him of the greater.'State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (quoting State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654 (1983)). “The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.” State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). “Where the State's evidence is clear and positive as to each element of the offense charged and there is no evidence showing the commission of a lesser . . . offense, it is not error for the judge to refuse to instruct on the lesser offense.” State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985) (citation omitted). Indeed, “'[a] defendant is not entitled to an instruction on a lesser . . . offense merely because the jury could possibly believe some of the [s]tate's evidence but not all of it.'” State v. Leazer, 353 N.C. 234, 240, 539 S.E.2d 922, 926 (2000) (quoting State v. Annadale, 329 N.C. 557, 568, 406 S.E.2d 837, 844 (1991)). A defendant's denial that he committed the offense at all is not sufficient to warrant the submission of an alternative offense to the jury. Annadale, 329 N.C. at 568, 406 S.E.2d at 843.
    A person is guilty of attempted second degree rape if “(1) the accused had the specific intent to commit rape; and (2) the accused committed an overt act for the purpose, which goes beyond mere preparation, but falls short of the complete offense.” State v. Farmer, ___ N.C. App. ___, 582 S.E.2d 352, 354 (2003); see N.C.G.S. § 14-27.3 (2003) (“A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person . . . [b]y force and against the will of the other person[.]”). “The elements of assault on a female are (1) an assault, (2) upon a female person, (3) by a male person[,] (4) who is at least eighteen years old.” State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 363, 370 (1988).
    In the present case, defendant was indicted for attempted second degree rape. The State's evidence tended to show that if defendant committed a crime, he committed attempted second degree rape. Defendant denied perpetrating any offense. On these facts, even assuming arguendo that G.S § 15-144.1(a) and Hatcher permit a trial court to submit assault on a female to a jury where adefendant is indicted for attempted second degree rape, defendant was not entitled to have assault on a female submitted to the jury because, consistent with Peacock, Annadale and Leazer, the evidence supported only one of two verdicts: guilty or not guilty of attempted second degree rape. Accordingly, the trial court did not err in refusing to submit assault on a female to the jury. This assignment of error is overruled.
    No error.
    Judges TIMMONS-GOODSON and THORNBURG concur.
    Report per Rule 30(e).

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