Appeal by defendant from Rousseau, Judge. Judgement entered 13 March 1981 in Superior Court, Guilford County. Heard in the Court of Appeals 27 April 1982.
Hedrick, Judge. Judge Hill concurs. Judge Becton concurs in the result.
By his first assignment of error, defendant argues that "[t]he trial court committed reversible error . . . when it withdrew the possible verdict of assault on a female from the jury's consideration." Defendant argues that there was evidence of his commission of assault on a female, and that such offense was a lesser included offense which should have been submitted to the jury.
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).
In the present case, the State presented evidence tending to show, inter alia, that on 10 December 1978, defendant grabbed Sheila Smith and pulled her onto his lap despite her telling him "No" when he beckoned her to sit with him, and despite her burning him with a cigarette; that Smith tried to break away but defendant held onto her and threw her on a bed and started kissing her and pressing his body down on her, despite her crying and her pleas that he stop; that he forcefully wrestled with Smith and, despite her continued resistance and further pleas and threats to prosecute, forcibly removed Smith's pants and other clothing; that Smith continued to try to push defendant off of her and that she hit him in the face with her fist and he struck her in retaliation; and that despite Smith's continued struggling and efforts at avoiding defendant, defendant succeeded in having sexual intercourse with Smith, without Smith's consent. Defendant's evidence tended to show that on 10 December 1978 he sat on a
bed beside Smith and put his arms around her and kissed her; that she put her arms around him and responded to him; that she then consensually engaged in sexual intercourse with defendant; and that during the course of their intercourse, she hit him "up side of the head and told . . .[him] to slow down, and [he] hit her back."
The evidence in the present case presents two sets of occurrences which arguably could constitute assault on a female. The first set of occurrences consists of defendant's wrestling with Smith, kissing her, and pressing his body on hers. The question, therefore, is whether the evidence of these occurrences, coupled with defendant's evidence that Smith consented to having intercourse with defendant, is evidence of the lesser included offense of assault on a female.
Assault is a requisite element of assault on a female, State v. Craig, 35 N.C. App. 547, 241 S.E.2d 704 (1978), and is defined as an overt act or an attempt, or the unequivocal appearance of 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. Sawyer, 29 N.C. App. 505, 225 S.E.2d 328 (1976). Although defendant's wrestling, kissing, and pressing himself against another without that other's consent may constitute assault, when such acts are merely the preliminaries to consensual sexual intercourse they can hardly suffice as an overt act of force and violence to do harm to another sufficient to put a reasonable person in fear of bodily harm. In the present case, the occurrences portrayed by defendant's evidence involve nothing more than consensual contact between Smith and defendant, prior to their act of intercourse; such contact could not constitute assault. The evidence under consideration presents a situation in which the jury could not reasonably find that defendant's intercourse with Smith was consensual and therefore that he did not commit the offense charged in the indictment, but that he did commit the lesser included offense of assault on a female; hence, with respect to the first set of circumstances, it was not error to withdraw the lesser included offense from the jury's consideration. See State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975), cert. denied, 428 U.S. 909, 49 L. Ed. 2d. 1216, 96 S. Ct. 3220 (1976).
This ruling is further bolstered by the following quote from State v. Davis, 291 N.C. 1, 13 229 S.E.2d 285, 293 (1976):
[I]n prosecutions for rape . . .[,] when all the evidence tends to show a completed act of intercourse and the only issue is whether the act was with the prosecuting witness's consent or by force and against her will, it is not proper to submit to the jury lesser offenses included within a charge of rape.
If the jury believed defendant's evidence that his contact with Smith was with her consent, then it would have to find defendant not guilty of second degree rape; he could not be guilty of assault on a female.
Defendant offers another set of circumstances which he argues constituted evidence of the lesser included offense of assault on a female; these circumstances, which were testified to by both the prosecutrix Smith and the defendant, are that defendant hit Smith in the face while trying to have intercourse with her after she hit him. The question this set of circumstances poses is whether defendant's evidence that he had consensual sexual intercourse with Smith and that he hit her after she hit him constitutes evidence of the lesser included offense of assault on a female.
"[O]ffenses are not the same if, upon the trial of one, proof of an additional fact is required which is not necessary to be proven in the trial of the other . . . ." State v. Freeman, 162 N.C. 594, 596, 77 S.E. 780, 781 (1913). The circumstances presently under consideration constitute evidence that defendant committed two separate and distinct offenses. First, there was evidence tending to show his commission of second degree rape, which, according to G.S. § 14-27.3, is vaginal intercourse with another person by force and against the will of that other person; second, there was evidence that defendant committed an assault on a female completely independent of and distinct from, as opposed to being inherent in and incident to, his forceful intercourse with Smith against her will. Proof of the assault on a female required evidence which was not necessary to the proof of second degree rape, to wit, evidence that defendant hit Smith while having intercourse with her; in its proof of second degree rape, the State did not need to rely on this evidence of defendant's blow to Smith, since there was ample evidence that he had used other
forceful measures to subdue Smith and subject her to intercourse against her will. In fact, defendant's own testimony was that he did not hit Smith until he was already having intercourse with her. Hence, the evidence under consideration is of two distinct offenses involving distinct occurrences, and is not of a greater offense and a lesser included offense. Defendant, however, was indicted only for second degree rape, and not for any distinct offense, arising from another set of acts, of assault on a female. "It is essential to jurisdiction that a criminal offense be charged in the warrant or indictment upon which the State brings the defendant to trial." State v. Vestal, 281 N.C. 517, 520, 189 S.E.2d 152, 155 (1972). Since there was no indictment for the separate offense of assault on a female, the court did not err in withdrawing such offense from the jury's consideration of possible verdicts. This assignment of error is overruled.
Defendant next assigns error to "[t]he trial court's instruction to the jury when deadlocked; on the grounds that the instructions violated G.S. 15A-1235." The challenged instructions were given after the jury had been deliberating for several hours and the jury foreman had informed the court that the jury was ...