State v. Wortham

341 S.E.2d 76
CourtCourt of Appeals of North Carolina
DecidedApril 1, 1986
Docket8512SC806
StatusPublished
Cited by16 cases

This text of 341 S.E.2d 76 (State v. Wortham) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wortham, 341 S.E.2d 76 (N.C. Ct. App. 1986).

Opinion

341 S.E.2d 76 (1986)

STATE of North Carolina
v.
Ricky Dean WORTHAM.

No. 8512SC806.

Court of Appeals of North Carolina.

April 1, 1986.

*77 Atty. Gen. Thornburg by Asst. Atty. Gen. Henry T. Rosser, Raleigh, for State.

Acting Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Robin E. Hudson, Raleigh, for defendant-appellant.

EAGLES, Judge.

I

Defendant first assigns error to the court's sentencing him for assault on a female, on the grounds that assault on a female is not a lesser included offense of attempted rape. We note that defendant did not object to the submission of the offense to the jury. Failure to object at trial ordinarily waives the right to assert error on appeal. App.R. 10(b)(2). However, the sufficiency of a criminal charge may be challenged without any exceptions or assignment of error having been made. App.R. 10(a). It is well established that an indictment for a greater offense is a sufficient charge of all lesser included offenses. G.S. 15-170; State v. Young, 305 N.C. 391, 289 S.E.2d 374 (1982). By analogy, whether *78 assault on a female is charged as a lesser included offense by an indictment charging attempted rape questions the sufficiency of the indictment. Accordingly, the issue may be raised on appeal, even in the absence of timely objection at trial. App.R. 10(a). Compare State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) (absent plain error, which did not occur, must be timely objection to lack of instruction on proper lesser included offense).

A

In State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982), our Supreme Court definitively held that the determination of whether one crime is a lesser included offense of another is made on a definitional, not a factual, basis. The Court expressly rejected the contention that under certain factual circumstances one offense might become a lesser included offense of another. Rather, all essential elements of the lesser offense must be completely covered by the essential elements of the greater offense. Id. at 635, 295 S.E.2d at 378-79. Followed State v. Roberts, 310 N.C. 428, 312 S.E.2d 477 (1984); State v. Odom, supra. Defendant relies heavily on the Weaver definitional test.

B

Defendant was indicted for attempted rape, not rape itself. While both attempted rape and assault on a female are lesser included offenses of rape, as recognized by G.S. 15-144.1 and G.S. 15-169, it does not necessarily follow from that fact alone that assault on a female is a lesser included offense of attempted rape.

C

The two essential elements of attempted rape are: (1) the intent to commit the rape and (2) an overt act done for that purpose which goes beyond mere preparation but falls short of the completed offense. State v. Freeman, 307 N.C. 445, 298 S.E.2d 376 (1983); followed State v. Bell, 311 N.C. 131, 316 S.E.2d 611 (1984). Compare 65 Am.Jur.2d, Rape, Section 26 (1972) (force necessary element). By the sexual acts involved, rape and attempted rape necessarily require a male perpetrator and a female victim. See State v. Barnes, 307 N.C. 104, 296 S.E.2d 291 (1982). Although the statute prescribing penalties, G.S. 14-27.6, distinguishes between attempts to commit first-degree rape and attempts to commit second-degree rape, the above definition of the crime does not. Nevertheless the definition applies to both levels of the crime of attempted rape. Freeman, supra (second-degree), Bell, supra (first-degree).

The distinction between "mere preparation" and "attempt" cannot always be drawn with precision. The overt act necessary for an attempt must be some step in a direct movement toward the commission of the offense after the preparations are made, which act in the ordinary course of things would result in consummation of the crime. State v. Addor, 183 N.C. 687, 110 S.E. 650 (1922); see State v. Jones, 227 N.C. 402, 42 S.E.2d 465 (1947); see also United States v. Jackson, 560 F.2d 112 (2d Cir.) ("substantial step" required), cert. denied sub nom. Jackson v. United States, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977), cert. denied sub nom. Allen v. United States, 434 U.S. 1017, 98 S.Ct. 736, 54 L.Ed.2d 762 (1978).

D

The essential elements of assault on a female, G.S. 14-33(b)(2), are (1) assault (2) upon a female person (3) by a male person. State v. Craig, 35 N.C.App. 547, 241 S.E.2d 704 (1978). Age is not an essential element of the offense. Id. An assault is an overt act or an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm. State v. Jeffries, 57 N.C.App. 416, 291 S.E.2d 859, disc. rev. denied and appeal dismissed, 306 N.C. 561, 294 S.E.2d 374 (1982). While the civil tort of assault *79 requires proof of actual apprehension of harmful contact on the part of the victim, McCraney v. Flanagan, 47 N.C.App. 498, 267 S.E.2d 404 (1980), criminal assault does not require proof of actual apprehension, so long as there is evidence of some overt act sufficient to put a person of reasonable firmness in apprehension of immediate bodily harm. State v. Musselwhite, 59 N.C. App. 477, 297 S.E.2d 181 (1982).

E

Whether the overt act involved in attempted rape necessarily includes the overt act in assault on a female is the determinative question here. Our decision in State v. Rick, 54 N.C.App. 104, 282 S.E.2d 497 (1981), while helpful, does not control. In Rick we considered an indictment which charged attempted rape of the victim "by force and against her will by overcoming her resistance and procuring her submission by the use of a deadly weapon," holding that this charge included assault on a female as a lesser offense. Id. at 109, 282 S.E.2d at 500-1. The Rick indictment's language did not charge attempted rape in general terms, as in the instant case, but instead specifically charged attempted first-degree rape with the use of a deadly weapon. G.S. 14-27.2(a).

F

Applying the definitional test established in Weaver, we conclude that the definition of attempted rape necessarily includes assault on a female. Rape is, after all, a crime of violence. Force sufficient to accomplish the act of intercourse can constitute sufficient force to support a conviction. State v. Aiken, 73 N.C.App. 487, 326 S.E.2d 919 (victim helpless), disc. rev. denied and appeal dismissed, 313 N.C. 604, 332 S.E.2d 180 (1985). The victim of rape has obviously suffered "immediate bodily harm" simply by the act of non-consensual intercourse. Since assault has always been a lesser included offense of rape, both before and after Weaver, G.S. 15-144.1, it follows under Weaver

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