An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NO. COA14-171 NORTH CAROLINA COURT OF APPEALS Filed: 19 August 2014 STATE OF NORTH CAROLINA
Wake County v. No. 08 CRS 76979
WILLIAM SCOTT KEANE
Appeal by defendant from judgment entered 15 March 2013 by
Judge Michael J. O’Fogludha in Wake County Superior Court.
Heard in the Court of Appeals 5 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.
Bruce T. Cunningham, Jr., for Defendant.
ERVIN, Judge.
Defendant William Scott Keane appeals from a judgment based
upon his conviction for first degree rape. On appeal, Defendant
contends that the trial court erred by failing to instruct the
jury concerning the issue of his guilt of assault inflicting
serious injury or, in the alternative, that his trial counsel
provided him with constitutionally deficient representation for
failing to request the delivery of such an instruction. After
careful consideration of Defendant’s challenges to the trial
court’s judgment in light of the record and the applicable law, -2- we conclude that the trial’s court judgment should remain
undisturbed.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
J.B.1 met Defendant in February 2008 at Carolina Ale House,
at which she worked. Subsequently, the two of them entered into
a nonexclusive sexual relationship, during which they saw each
other once or twice a month. On each occasion when the two of
them were together, they had sexual intercourse.
In July 2008, Defendant and Jennifer spent the night at the
residence of one of Defendant’s friends. While Defendant was
asleep, his phone rang repeatedly. As a result, Jennifer
answered Defendant’s phone. After Defendant awoke, Jennifer
admitted having answered his phone, causing Defendant to become
angry, punch her in the face repeatedly, and force her to remain
at that location for hours without leaving his sight for any
purpose, including going to the bathroom. Defendant threatened
to kill Jennifer and her mother if she contacted the police.
Although she did not report Defendant’s conduct to law
1 J.B. will be referred to throughout the remainder of this opinion as Jennifer, a pseudonym used for ease of reading and to protect J.B.’s privacy. -3- enforcement officers, Jennifer did provide that information to
her mother and her best friend, Robin Fuller.
After the date upon which Defendant assaulted and
restrained her, Jennifer left North Carolina for a month in
order to heal. Upon returning to North Carolina, Jennifer
resumed her sexual relationship with Defendant. Jennifer and
Defendant had sexual intercourse on two occasions between the
date of Jennifer’s return to North Carolina and 24 October 2008.
Although Jennifer did not want to have sexual intercourse with
Defendant on those occasions, she was afraid that she would be
injured if she rejected his advances.
On 24 October 2008, Jennifer invited several friends to her
townhouse for a party which began between 7:00 and 8:00 p.m.
During the course of the evening, Jennifer consumed eight to
nine alcoholic beverages. At some point during the evening,
Jennifer called a co-worker, Andy Maldonado, and invited him to
the party. Mr. Maldonado arrived at the townhouse after
midnight at a time when only two other guests were still
present. After the two remaining guests left, Jennifer and Mr.
Maldonado went upstairs to her room. Although Jennifer was
intoxicated and felt slightly sick to her stomach, she was
neither nauseated nor incoherent and did not fall or stumble on
the stairs. -4- After reaching the bedroom, Jennifer and Mr. Maldonado
began kissing on her bed. As the two of them did this, they
heard a door slam and the sound of footsteps on the stairs.
Shortly thereafter, Defendant, who was in an angry frame of
mind, appeared in the doorway, asked what was going on, and told
Mr. Maldonado to leave. As Mr. Maldonado retreated down the
stairs, Defendant put his hand on Mr. Maldonado’s back and
pushed him, causing Mr. Maldonado to grab the railing in order
to keep from falling. Defendant accompanied Mr. Maldonado to a
waiting taxi outside and then reentered the townhouse.
Upon leaving the townhouse, Mr. Maldonado called Ms. Fuller
and told her what had occurred. During that conversation, Mr.
Maldonado told Ms. Fuller that he believed that Jennifer’s
safety was at risk and suggested that she call somebody for
assistance. After calling the Carolina Ale House for the
purpose of obtaining Jennifer’s address, Ms. Fuller called 911,
explained what had occurred, and requested that a law
enforcement officer go to Jennifer’s townhouse immediately.
At the time that Defendant returned to the bedroom,
Jennifer was lying on the floor next to the bed. Defendant
stood above Jennifer, yelled at her, questioned why she had been
with Mr. Maldonado, and began to hit her on the head with both
hands while making derogatory comments about her. After -5- striking her many times, Defendant lifted Jennifer off the
ground; grabbed her by the hair, arms, and shoulders; made her
look him in the eyes; and hit her in the face. Although
Jennifer attempted to distract Defendant by telling him that one
of his friends had told her that Defendant was married,
Defendant resumed his assault upon Jennifer by striking her as
she curled up on the floor in an attempt to protect herself. In
addition, Defendant called a friend to ask who had told Jennifer
that he was married.
After making this phone call, Defendant picked Jennifer up
by her hair, made her look in his eyes, and struck her in the
face. She fell to the floor and Defendant repeated the act of
picking her up and striking her five to six times. As Defendant
continued to strike Jennifer and made several phone calls, Ms.
Fuller called Jennifer. When she answered the phone, Jennifer
began screaming, “Rick told me he was married.” Ms. Fuller
concluded that something was “very, very wrong,” since Jennifer
seemed very afraid. After the call ended, Defendant struck
Jennifer again, so that she threw up on the bed, the floor, and
herself.
At that point, Defendant picked Jennifer up and began to
slowly undress her in a “sick” way. Although Jennifer told
Defendant that she did want any of “this,” she refrained from -6- resisting given her fear that Defendant was going to kill her.
After removing his pants, Defendant began to have sexual
intercourse with Jennifer. After completing this act of
intercourse, Defendant dressed himself and made a phone call to
a friend. At that point, Jennifer dressed herself in a
bathrobe, excused herself by saying that she wanted a drink of
water, walked downstairs, and left the townhouse.
Upon opening the townhouse door, Jennifer encountered
Officer Robert Edmundson of the Raleigh Police Department, who
had been dispatched to her residence between 2:20 and 3:00 a.m.
and told him that, if Defendant knew that Officer Edmundson was
there, he would kill her. After noting the existence of
injuries to Jennifer’s face, Officer Edmundson told her to go to
his patrol vehicle. At that point, however, Defendant emerged
from the townhouse.
As Officer Edmundson ordered Defendant to stop and get on
his knees, Jennifer identified Defendant as her assailant.
Although Defendant acted puzzled and did not initially comply,
he eventually got down on one knee before running towards the
woods adjacent to Jennifer’s townhouse. After a relatively
short pursuit, Officer Edmundson apprehended Defendant when he
collided with a fence and tripped. Defendant told Officer
Edmundson that he had not touched Jennifer and that some other -7- man had beaten her up. Jennifer gave statements to officers at
the townhouse describing the assault, but she did not report
that she had been raped.
After encountering Officer Edmundson, Jennifer was
transported to the hospital for treatment. At the time that she
reached the hospital, bruises and abrasions could be seen on
Jennifer’s face, head, shoulders, and arms. Jennifer’s head was
so severely bruised that x-rays were taken. In addition,
Jennifer’s right eye was severely swollen. As a result of the
fact that Jennifer had a hematoma below her right ear, medical
personnel had to drain blood from her ear and apply a pressure
dressing to prevent further swelling. Jennifer’s injuries took
about a month to heal.
After speaking with her mother from the hospital, Jennifer
reported that she had been raped. According to her mother,
Jennifer still cries when reminded of what happened, shakes
uncontrollably when the events underlying this case are
discussed, is frightened by loud noises, and refuses to answer
the door.
Agent Timothy Anguish of the City County Bureau of
Identification examined Jennifer’s townhouse, took photographs
of the interior of the structure, and collected other items of
evidence. Agent Anguish did not note any damage to or unusual -8- condition in the stairwell. A clump of hair, a bracelet, and an
earring, along with the vomit-stained clothes that Jennifer had
worn on the preceding evening, were found on the bedroom floor
adjacent to the bed.
2. Defendant’s Evidence
Defendant had been involved in a sexual relationship with
Jennifer since January or February 2008. On a daily basis,
Jennifer would call or send a text message to Defendant in which
she requested that he see or have sexual intercourse with her.
Although the two of them initially saw each other each week,
Defendant subsequently decided that they should see each other
on a bi-weekly basis. On each occasion when they were together,
Jennifer would initiate sexual contact with Defendant.
Upon waking at a friend’s house in July 2008, Jennifer told
Defendant that she had answered his phone when his “wife”
called. Although Defendant became upset, he did not strike
Jennifer on this occasion. They did, however, argue as
Defendant drove Jennifer home. After this incident, Defendant
stopped interacting or communicating with Jennifer. During this
interval, Jennifer reported for work, never left North Carolina,
and continued contacting Defendant.
About a month after the July incident, Jennifer contacted
Defendant by calling him from a different phone number than the -9- one that she had previously used. As a result of the fact that
Jennifer was distraught and wanted to see Defendant, the two of
them met and resumed their sexual relationship.
On the night of 24 October 2008, Jennifer called Defendant
repeatedly. After reaching Defendant, Jennifer invited him to
the party that was being held at her townhouse, so Defendant
took a cab to that location. After telling the cab driver to
wait, he knocked on the townhouse door. As a result of the fact
that no one answered the unlocked door, Defendant entered the
townhouse and went up the stairs to Jennifer’s bedroom.
Upon entering the bedroom, Defendant saw Jennifer on her
bed with a man standing at the foot of that piece of furniture.
At that point, Defendant asked who the man was and if he was
interrupting the two of them. After Defendant posed this
question, the man exited the bedroom and went down the stairs,
followed by Defendant. Although Defendant asked if the man and
Jennifer had had intercourse, he did not threaten the man. Once
he had paid the cab driver, Defendant went back inside the
house.
Upon reentering the bedroom, Defendant asked Jennifer who
the man was and was told that he was just a friend from work.
After Jennifer attempted to kiss Defendant, he shied away from
her advances. Even so, Jennifer began to unbuckle his pants and -10- perform oral sex on him. After doing that, Jennifer voluntarily
undressed herself with Defendant’s assistance, placed her
clothes on the edge of the bed, and pulled Defendant to her, at
which point they had sexual intercourse. As Defendant attempted
to kiss Jennifer, he noticed that her breath smelled of stale
alcohol, so he ended their sexual encounter and got up.
Defendant denied having hit Jennifer and that there was any
indication that she had been nauseated.
At that point, Jennifer asked Defendant for the reason that
he had ended their encounter, suggesting that he had acted in
that manner because he was married. When Defendant asked
Jennifer who had told her that he was married, she claimed to
have received that information from one of his friends. After
Jennifer made this assertion, Defendant called a different
friend, asked him if the friend that Jennifer had named had
talked to Jennifer, and requested to be picked up from
Jennifer’s residence. Although Jennifer received a phone call
while he talked to his friend, Defendant paid no attention to
Jennifer’s conversation except to note that Jennifer repeatedly
stated that “Rick told me he was married.”
Although Defendant attempted to leave, Jennifer became
emotional and said that she wanted Defendant to stay. After
calling his friend a second time to make sure that he was on his -11- way, Defendant left the bedroom while hearing Jennifer making
noises tending to suggest that she was vomiting, an action that
he interpreted as a pretense to induce him stay. As Defendant
attempted to leave, Jennifer grabbed his shirt, causing him to
jerk away from her and making her fall to her knees. When she
fell, Jennifer made an effort to grab onto Defendant. Instead,
however, Jennifer hit her face on the bannister or stairway
wall.
After helping Jennifer to her feet, Defendant told her that
he was leaving. As a result of the fact that he had dropped his
phone during their scuffle, Defendant took a moment to attempt
to find it. As he searched for his phone, Jennifer dressed
herself in a robe and then walked downstairs in advance of
Defendant. In view of the fact that Jennifer had preceded him
downstairs, the front door was open at the time that he left her
townhouse.
As Defendant went out the front door of Jennifer’s
townhouse, he heard a police officer tell him to freeze. At
that point, Defendant noticed that the officer was shining a
light on him and had aimed a Taser at him. In surprise,
Defendant asked Jennifer what was going on. Although Defendant
began to get on his knees in response to the officer’s command,
he ran away instead given his fear that the officer would shock -12- or kill him. After slackening his pace and turning to face the
officer, Defendant tripped and fell. As soon as Defendant had
been restrained, the officer asked Defendant why he had run
without receiving any answer. After having been taken into
custody, Defendant denied having assaulted or raped Jennifer and
claimed that the two had had a consensual sexual encounter.
B. Procedural History
On 25 October 2008, a warrant for arrest charging Defendant
with first degree rape was issued. On 1 December 2008, the Wake
County grand jury returned a bill of indictment charging
Defendant with first degree rape. The charge against Defendant
came on for trial before the trial court and a jury at the 11
March 2013 criminal session of the Wake County Superior Court.
On 15 March 2013, the jury returned a verdict convicting
Defendant of first degree rape. At the conclusion of the
ensuing sentencing hearing, the trial court entered a judgment
sentencing Defendant to a term of 384 to 470 months
imprisonment. Defendant noted an appeal to this Court from the
trial court’s judgment.
II. Legal Analysis
A. Trial Court Error by Failing to Submit
In his first challenge to the trial court’s judgment,
Defendant contends that the trial court erred by failing to -13- instruct the jury concerning the issue of his guilt of assault
inflicting serious injury. More specifically, Defendant
contends that assault inflicting serious injury is a lesser
included offense of first degree rape in this instance and that
the evidence would have supported a determination that, although
the sexual contact between himself and Jennifer was consensual,
Defendant assaulted her in a non-sexual manner and inflicted
serious injuries upon her. Defendant is not entitled to relief
from the trial court’s judgment on the basis of this contention.
1. Standard of Review
As a general proposition, arguments “challenging the trial
court’s decisions regarding jury instructions are reviewed de
novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466,
675 S.E.2d 144, 149 (2009). “[A]n error in jury instructions is
prejudicial and requires a new trial only if ‘there is a
reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the
trial out of which the appeal arises.’” State v. Castaneda, 196
N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009) (quoting N.C.
Gen. Stat. § 15A-1443(a)). However,
[a] party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict . . . provided that opportunity was given to the -14- party to make the objection out of the hearing of the jury.
N.C.R. App. P. 10(a)(2).
Although Defendant requested the trial court to instruct
the jury concerning the issue of his guilt of assault on a
female during the charge conference, he never made any reference
to the possibility that he might be guilty of assault inflicting
serious injury during that portion of the proceedings.
Moreover, Defendant never objected to the trial court’s failure
to allow the jury to consider the issue of his guilt of assault
inflicting serious injury despite the fact that the trial court
specifically asked Defendant if he had any additional objections
to the manner in which the jury had been instructed. As a
result, Defendant has not properly preserved his challenge to
the trial court’s failure to allow the jury to consider the
issue of his guilt of assault inflicting serious injury for
purposes of appellate review.
According to well-established North Carolina law, “an issue
that was not preserved . . . nevertheless may be made the basis
of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to
plain error.” N.C.R. App. P. 10(a)(4). Thus, this Court may
review a defendant’s challenge to the trial court’s jury
instructions or evidentiary rulings in the event that Defendant -15- specifically and distinctly contends that the challenged
judicial decision amounts to plain error. State v. Gregory, 342
N.C. 580, 584, 467 S.E.2d 28, 31 (1996). In the event that the
defendant fails to directly argue that the challenged trial
court action constituted plain error, however, the defendant is
not entitled to plain error review of that action. State v.
Moseley, 338 N.C. 1, 36, 449 S.E.2d 412, 433-34 (1994), cert.
denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738
(1995). As a result of the fact that Defendant has not argued
that the trial court’s failure to instruct the jury to consider
the issue of Defendant’s guilt of assault inflicting serious
injury constituted plain error, Defendant has waived the right
to any appellate review of this aspect of his challenge to the
trial court’s jury instructions.
2. Validity of Trial Court’s Decision
a. Relevant Legal Principles
Assuming, for purposes of discussion, that Defendant had
properly preserved his challenge to the trial court’s failure to
submit the issue of his guilt of assault inflicting serious
injury to the jury, we would conclude that any such contention
would have no merit. As a general proposition, a lesser
included offense is a crime that “requires no proof beyond that
which is required for conviction of the greater [offense].” -16- Brown v. Ohio, 432 U.S. 161, 168, 97 S. Ct. 2221, 2226, 53 L.
Ed. 2d 187, 196 (1977). A trial court should instruct the jury
concerning the issue of the defendant’s guilt of a lesser
included offense only if “there is evidence from which the jury
could find that such included crime of lesser degree was
committed.” State v. Ward, 286 N.C. 304, 311, 210 S.E.2d 407,
413 (1974) (quoting State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d
545, 547 (1954)), vacated in part on other grounds, 428 U.S.
903, 96 S. Ct. 3206, 49 L. Ed. 2d 1207 (1976). “Under North
Carolina and federal law a lesser included offense instruction
is required if the evidence ‘would permit a jury rationally to
find [the defendant] guilty of the lesser offense and acquit him
of the greater.’” State v. Thomas, 325 N.C. 583, 594, 386
S.E.2d 555, 561 (1989) (quoting State v. Strickland, 307 N.C.
274, 286, 298 S.E.2d 645, 654 (1983), overruled in part on other
grounds in State v. Johnson, 317 N.C. 193, 203, 344 S.E.2d 775,
781 (1986)). As a result, Defendant would have been entitled to
the delivery of an instruction concerning the issue of his guilt
of assault inflicting serious injury in the event that all of
the elements necessary for a finding that Defendant had
committed that offense were also elements of first degree rape
and that the record evidence would have permitted the jury to -17- find that Defendant was guilty of that offense instead of first
degree rape.
A person is guilty of first degree rape in the event that
he engages in (1) vaginal intercourse with another (2) by force
and (3) against the will of the other person and (4) inflicts
serious personal injury upon the alleged victim or another
person. State v. Rogers, 153 N.C. App. 203, 208, 569 S.E.2d
657, 661 (2002) (quoting N.C. Gen. Stat. § 14-27.2(a)(2)(b)),
disc. review denied, 357 N.C. 168, 581 S.E.2d 442 (2003). An
act of vaginal intercourse sufficient to support a rape
conviction has occurred in the event that the male sex organ
penetrates the female sex organ, however slightly. State v.
Weaver, 117 N.C. App. 434, 439, 451 S.E.2d 15, 19 (1994) (citing
State v. Sneeden, 274 N.C. 498, 501, 164 S.E.2d 190, 193
(1968)). “The requisite force necessary to convict on a charge
of rape may either be actual, physical force or constructive
force in the form of fear, fright, or acts of coercion.” State
v. Morrison, 94 N.C. App. 517, 522, 380 S.E.2d 608, 611 (citing
State v. Hines, 286 N.C. 377, 380, 211 S.E.2d 201, 203 (1975)),
cert. denied, 325 N.C. 549, 385 S.E.2d 507 (1989). Consent
induced by violence or fear of violence is not effective to
preclude a rape conviction. State v. Armstrong, 287 N.C. 60,
64, 212 S.E.2d 894, 896 (1975) (citing State v. Carter, 265 N.C. -18- 626, 631-32, 144 S.E.2d 826, 829-30 (1965)), vacated in part on
other grounds, 428 U.S. 902, 96 S. Ct. 3204, 49 L. Ed. 2d 1206
(1976). In determining “whether serious personal injury has
been inflicted, the court must consider the particular facts of
each case.” State v. Herring, 322 N.C. 733, 739, 370 S.E.2d
363, 367 (1988) (citing State v. Roberts, 293 N.C. 1, 11-17, 235
S.E.2d 203, 210-13 (1977)). As the Supreme Court has stated,
the record contains sufficient evidence to support a
determination that the perpetrator inflicted serious personal
injury for purposes of establishing his guilt of first degree
rape in the event that the perpetrator repeatedly strikes the
victim before forcing her to engage in sexual intercourse so
that there is “one continuous transaction [involving] the rape
and the infliction of the serious personal injury.” State v.
Locklear, 320 N.C. 754, 757, 360 S.E.2d 682, 684 (1987) (quoting
State v. Blackstock, 314 N.C. 232, 242, 333 S.E.2d 245, 252
(1985)).
A determination that a defendant is guilty of the offense
of assault inflicting serious injury requires proof that (1) the
defendant assaulted the victim, and (2) inflicted serious bodily
injury, N.C. Gen. Stat. § 14-33(c)(1), with the factors to be
considered in determining whether a serious injury occurred
including “pain, loss of blood, hospitalization, and time lost -19- from work.” State v. Owens, 65 N.C. App. 107, 111, 308 S.E.2d
494, 498 (1983) (citing State v. Pettiford, 60 N.C. App. 92, 94-
98, 298 S.E.2d 389, 390-92 (1982), and State v. Stephenson, 43
N.C. App. 323, 327, 258 S.E.2d 806, 808 (1979), disc. review
denied, 299 N.C. 124, 262 S.E.2d 8 (1980)). “Instructions
[concerning assault-based] lesser included offenses of first
degree rape are warranted only when there is some doubt or
conflict concerning the crucial element of penetration.” State
v. Williams, 314 N.C. 337, 351, 333 S.E.2d 708, 718 (1985)
(quoting State v. Wright, 304 N.C. 349, 353, 283 S.E.2d 502, 505
(1981)). “[I]t is firmly established that” any assault-based
lesser included offenses of rape do not have to be submitted to
the jury where “the only dispute is whether an admitted act of
sexual intercourse was accomplished by consent or force.” State
v. Edmondson, 302 N.C. 169, 171, 273 S.E.2d 659, 660 (1981). In
the event that defendant elicits evidence that he did not touch
the victim in an assaultive manner and the State elicits
evidence that he raped and seriously injured the victim, the
record does not support the submission of an assault-based
lesser included offense. See State v. Lampkins, 286 N.C. 497,
504, 212 S.E.2d 106, 110 (1975), cert. denied, 428 U.S. 909, 96
S. Ct. 3220, 49 L. Ed. 2d 1216 (1976). Put another way, “[t]he
mere possibility that the jury might believe part but not all of -20- the testimony of the prosecuting witness” is insufficient to
require a trial court to submit to the jury the issue of the
defendant’s guilt of a lesser included offense. Id. Assuming,
without in any way deciding, that assault inflicting serious
injury is a lesser included offense of first degree rape, a
careful analysis of the record developed at trial in light of
the fundamental legal principles outlined above establishes that
the trial court did not err by failing to allow the jury to
consider the issue of Defendant’s guilt of assault inflicting
serious injury.
b. Evidentiary Analysis
The record contains two starkly conflicting versions of the
events that occurred on 25 October 2008. On the one hand, the
evidence elicited by the State tends to show that Defendant beat
Jennifer repeatedly before forcing her to have sexual
intercourse with him against her will. The evidence elicited by
Defendant, on the other hand, tends to show that Jennifer
initiated the sexual contact between herself and Defendant, that
this contact was entirely consensual, and that Jennifer’s
injuries resulted from an unfortunate accident that occurred
after their sexual encounter had ended. Defendant denied having
ever hit Jennifer, adhering to this contention during his
conversations with investigating officers and in his trial -21- testimony. As a result, the State’s evidence tends to show that
Defendant was either guilty of first degree rape or second
degree rape, depending on whether Jennifer’s injuries were
deemed to constitute serious personal injury, while Defendant’s
evidence tends to show that Defendant was not guilty of any
offense. As a result, given the complete absence of any
indication that penetration did not occur, there is simply no
evidentiary support for Defendant’s contention that a reasonable
jury could have convicted him of assault inflicting serious
injury based upon the evidence contained in the present record.
In attempting to persuade us that his position concerning
this issue has merit, Defendant argues that the jury could, on
the one hand, have believed that portion of his testimony in
which he asserted that the sexual contact between himself and
Jennifer was consensual and that portion of Jennifer’s testimony
to the effect that Defendant had assaulted her, thereby
providing the necessary evidentiary support for a determination
that he had assaulted Jennifer and inflicted serious injury upon
her. As we have noted, however, well-established principles of
North Carolina law do not permit the submission of the issue of
a defendant’s guilt of a lesser included offense to the jury on
the theory that the jury might believe portions of the testimony
of multiple witnesses while disbelieving other portions of the -22- testimony of the same witnesses. Id. Moreover, even if this
obstacle to the acceptance of Defendant’s theory did not exist,
we would still be required to reject this portion of Defendant’s
challenge to the trial court’s judgment given that, according to
Defendant’s testimony, the incident that led to Jennifer’s
injuries had nothing whatsoever to do with the consensual
intercourse in which she and Defendant allegedly engaged. In
other words, Jennifer’s injuries were either sustained during a
“continuous transaction” that resulted in the infliction of
“injury . . . on the victim [sufficient] to overcome resistance
or to obtain submission,” Blackstock, 314 N.C. at 242, 333
S.E.2d at 252, or a later incident unrelated to the encounter
underlying the first degree rape charge. As a result, the
principal argument advanced in support of this aspect of the
challenge to the trial court’s judgment in Defendant’s brief
necessarily fails for lack of evidentiary support.
In addition, Defendant points to the fact that the trial
court submitted the issue of his guilt of assault on a female to
the jury as a lesser included offense, arguing that the same
evidence that supported the submission of assault on a female
necessitated the submission of assault inflicting serious injury
as well. Although assault on a female may, under certain
circumstances, be a lesser included offense of rape, N.C. Gen. -23- Stat. § 15-144.1(a), Defendant’s argument is fatally undermined
by the same considerations that have led us to conclude that the
trial court did not err by failing to allow the jury to consider
the issue of his guilt of assault inflicting serious injury. In
light of those considerations, we hold that the trial court’s
decision to allow the jury to consider the issue of his guilt of
assault on a female constituted an error favorable to Defendant
and provides no basis for a decision to overturn the trial
court’s judgment. As a result, we conclude, as an alternative
basis for upholding the trial court’s judgment, that the trial
court did not err by failing to instruct the jury concerning the
issue of Defendant’s guilt of assault inflicting serious injury.
B. Ineffective Assistance of Counsel
Alternatively, Defendant contends that he is entitled to a
new trial on the grounds that the failure of his trial court to
request the submission of the issue of his guilt of assault
inflicting serious injury to the jury as a lesser included
offense constituted ineffective assistance of counsel. We need
not discuss this issue at any length, however, given that the
considerations that we have outlined in detail above necessitate
a conclusion that, had Defendant’s trial counsel requested the
trial court to allow the jury to consider the issue of his guilt
of assault inflicting serious injury, that request should have -24- been rejected. State v. Allen, 360 N.C. 297, 316, 626 S.E.2d
271, 286 (stating that a defendant is not entitled to relief
from a conviction based upon deficient performance by his trial
counsel in the absence of a showing that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different”) (citations
and quotation marks omitted), cert. denied, 549 U.S. 867, 127 S.
Ct. 164, 166 L. Ed. 2d 116 (2006). As a result, Defendant is
not entitled to relief from the trial court’s judgment on the
basis of this contention.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
neither of Defendant’s challenges to the trial court’s judgment
have merit. As a result, the trial court’s judgment should, and
hereby does, remain undisturbed.
NO ERROR.
Judges ROBERT N. HUNTER, JR., and DAVIS concur.
Report per Rule 30(e).