Appeal by defendant from Barefoot, Judge. Judgment entered 20 May 1981 in Superior Court, Duplin County. Heard in the Court of Appeals 11 February 1982.
Hedrick, Judge. Judge Hill concurs. Judge Becton dissents.
By his first assignment of error, defendant argues, "The trial court committed reversible error by failing to instruct the jury that in order to convict the defendant of second degree rape it must find beyond a reasonable doubt that the defendant penetrated Ms. Newkirk's sex organ with his sex organ." Defendant contends that the court's instructions inadequately covered one element of second-degree rape, in that they stated merely that "the State must prove . . . that the defendant had sexual intercourse with Anna Newkirk."
"The judge must charge the essential elements of the offense." State v. Hairr, 244 N.C. 506, 509, 94 S.E.2d 472, 474 (1956). The statutory definition of second-degree rape lists "vaginal intercourse" as an essential element of the offense. G.S. § 14-27.3(a). The question, therefore, is whether the court's instruction requiring a finding that defendant committed "sexual intercourse" was a sufficient charge on the "vaginal intercourse" element of second-degree rape. Although there is always sexual intercourse when there is vaginal intercourse, State v. Vinson 287 N.C. 326, 215 S.E.2d 60 (1975), death sentence vacated, 428 U.S. 902, 49 L. Ed. 2d 1206, 96 S. Ct. 3204 (1976), there are instances in which there may be sexual intercourse in a form other than vaginal intercourse. Hence, strictly speaking, the jury in the present case, following the court's instruction, could have found the defendant guilty of second-degree rape by finding that he
engaged in a form of copulative sexual intercourse other than the requisite vaginal intercourse. A charge to the jury, however,
will be construed contextually as a whole, and when, so construed, it presents the law of the case in such a manner as to leave no reasonable cause to believe the jury was misled or misinformed, an exception thereto will not be sustained, even though the instruction might have been more aptly given in different form.
State v. Davis, 290 N.C. 511, 544-45, 227 S.E.2d 97, 117 (1976). "The judge's words may not be detached from the context and the incidents of the trial and then critically examined for an interpretation from which erroneous expressions may be inferred." State v. McWilliams, 277 N.C. 680, 685, 178 S.E.2d 476, 479 (1971).
At trial in the present case, the State's evidence pertained only to the defendant having committed vaginal intercourse with Ms. Newkirk, and not at all to any other form of copulative sexual intercourse. The State presented evidence tending to show that defendant "ravished" Anna Newkirk on 28 March 1981, that she was later examined by a physician on the same day of her confrontation with defendant and was found to have had a penetration of her vagina, and that on 28 March 1981 Ms. Newkirk told the Rose Hill Chief of Police that defendant raped her. Within the context of the trial, the court's instructions requiring a finding of "sexual intercourse" could not reasonably be believed to have misled the jury into thinking it could convict defendant of second-degree rape for having committed a form of sexual intercourse other than vaginal intercourse. Furthermore, "the law [does] not require that any particular words be used when stating the elements of the offense," State v. Thacker, 301 N.C. 348, 356, 271 S.E.2d 252, 257 (1980), and "the term 'sexual intercourse' encompasses actual penetration" of the female sexual organ by the male sexual organ. State v. Vinson, supra at 342, 215 S.E.2d at 71. We hold the instructions challenged by defendant sufficiently related the law of second-degree rape to the evidence presented, and this assignment of error is overruled.
Defendant's next assignment of error is "[t]he trial court's failure to submit the offense of assault as a lesser included offense of second degree rape."
Where it is permissible under the bill of indictment to convict the accused of a lesser degree of the crime charged, and there is evidence to support a milder verdict, defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. . . . Unless there is evidence of guilt of the lesser degree, however, the court should not submit it. . . . If all the evidence tends to show that the crime charged in the bill of indictment was committed, and there is no evidence tending to show commission of a crime of lesser degree, the court correctly refuses to charge on the unsupported lesser degree and correctly refuses to submit lesser degrees of the crime charged as permissible verdicts.
State v. Allen, 297 N.C. 429, 434, 255 S.E.2d 362, 365 (1979) [Emphasis in original]. The mere contention that the jury might accept the State's evidence in part and might reject it in part will not suffice to require submission to the jury of a lesser degree. State v. Capel, 21 N.C. App. 311, 204 S.E.2d 226, cert. denied, 285 N.C. 592, 205 S.E.2d 724 (1974).
When, upon all the evidence, the jury could reasonably find the defendant committed the offense charged in the indictment, but could not reasonably find that (1) he did not commit the offense charged in the indictment and (2) he did commit a lesser offense included therein, it is not error to restrict the jury to a verdict of guilty of the offense charged in the indictment or a verdict of not guilty, thus withholding from their consideration a verdict of guilty of a lesser included offense.
State v. Lampkins, 286 N.C. 497, 504, 212 S.E.2d 106, 110 (1975), cert. denied, 428 U.S. 909, 49 L. Ed. 2d 1216, ...