An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-662


Filed: 17 January 2006


         v.                         Iredell County
                                 Nos. 01 CRS 8493, 53076,
ROY LEE ADAMS, JR.                           53079        &n bsp;                            

    On writ of certiorari to review the judgments entered 27 June 2002 by Judge Richard L. Doughton in Iredell County Superior Court. Heard in Court of Appeals 9 January 2006.

     Attorney General Roy Cooper, by Assistant Attorney General Joyce S. Rutledge, for the State.

    Russell J. Hollers, III, for defendant appellant.

    McCULLOUGH, Judge.

     On 11 June 2001, defendant Roy Lee Adams, Jr., was indicted on two counts of first-degree rape and one count of first-degree sexual offense. The case was tried at the 24 June 2002 Criminal Session of Iredell County Superior Court. The evidence presented at trial tended to show the following: On 13 May 2001, MB, a forty- seven-year-old woman, attended a cookout at the home of Kenny Redmond. While at the cookout, MB drank some beer and engaged in conversation with defendant. MB stayed for about two hours before deciding to leave the party. MB told Redmond that she was leaving and thanked him for inviting her. MB left the party and headed toward a BP station to buy some cigarettes. Defendant approached her as she was leaving and informed MB that he was “going that way,too.”
    Defendant stopped to talk with “one of the guys,” but then followed MB down some railroad tracks towards the BP. Defendant eventually caught up with her and grabbed her by the arm. MB asked him what he wanted, and he responded “You know what I want” then pulled her down the tracks while MB struggled. Defendant started hitting her with his fist, both in her jaw and in her right eye. Defendant knocked her down and forced her to disrobe, after which he raped her. Afterwards, MB tried to run away, but defendant caught her. Defendant then tried to force MB's head down on his penis. Defendant then took MB to an abandoned house where he raped her again. After the second time defendant raped her, MB waited until he was asleep before running back to Redmond's home and calling the police. After interviewing MB, the police went to the abandoned house to look for defendant. The police found defendant laying naked and asleep on the floor.
     Defendant was convicted of two counts of second-degree rape and one count of second-degree sexual offense and sentenced to two consecutive terms of 133 to 169 months' imprisonment. Defendant failed to perfect his appeal in a timely manner, but his appeal was allowed by an order of our Court granting defendant's petition for writ of certiorari on 22 September 2004.
     Defendant's sole argument on appeal is that the trial court erred by denying his requested instruction on consent. We find no error.
     Defendant contends that the trial court should havespecifically instructed the jury that:
        If the evidence when weighed by you shows that [MB] consented to engage in sex with Roy Adams, then I charge you, as to each charge regarding sexual activity that you find she consented to, you should return a verdict of not guilty.

The trial court denied the defendant's request and instead charged the jury in accordance with the North Carolina Pattern Jury Instructions. The court instructed the jury as to the elements of rape and first- and second-degree sexual offense, that to find the defendant guilty, it must find “that the victim did not consent, and it was against her will. Consent induced by fear is not consent at law.”
    Our Supreme Court has stated that:
        A trial court is not required to give a requested instruction in the exact language prayed for. If a requested instruction is correct in law and supported by the evidence, the court, “while not required to parrot the instructions 'or to become a mere judicial phonograph for recording the exact and identical words of counsel,' must charge the jury in substantial conformity to the prayer.” Whether the trial court instructs using the exact language requested by counsel is a matter within its discretion and will not be overturned absent a showing of abuse of discretion.

State v. Herring, 322 N.C. 733, 742, 370 S.E.2d 363, 369 (1988) (citations omitted). In the instant case, as in Herring, “the record discloses that the trial court instructed the jury in substantial conformity with the defense counsel's request. The court's refusal to give the defendant's special instructions verbatim was not an abuse of discretion.” Id.     Moreover, we note that the jury instructions here are almost verbatim with instructions approved by this Court in State v. Rhinehart, 68 N.C. App. 615, 619, 316 S.E.2d 118, 121 (1984) . In Rhinehart, the trial court instructed the jury that to
        find defendant guilty, the State had to prove beyond a reasonable doubt, inter alia, “[t]hat [the complainant] did not consent[,] [i]t was against her will.” It further instructed that “[c]onsent . . . induced by fear is not consent at law.”

Id. This Court held “these instructions clearly sufficient to convey the substance of defendant's request for a charge that consent is a defense to the crime of rape.” Id. Accordingly, we find no error.
    No error.    
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

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