An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
