An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-536
                        NORTH CAROLINA COURT OF APPEALS

                              Filed: 21 January 2014

STATE OF NORTH CAROLINA

      v.                                      Randolph County
                                              No. 97 CRS 17484
RONALD LEE PUGH


      Appeal by defendant from judgment entered 23 September 2010

by Judge V. Bradford Long in Randolph County Superior Court.

Heard in the Court of Appeals 23 October 2013.


      Attorney General Roy Cooper, by Special Deputy                      Attorney
      General Danielle Marquis Elder, for the State.

      Appellate Defender Staples Hughes for defendant.


      HUNTER, Robert C., Judge.


      Defendant Ronald Lee Pugh appeals the judgment sentencing

him   to    life      imprisonment    without     parole    entered     upon    his

conviction for first degree murder on the bases of premeditation

and deliberation and felony murder.                  Defendant puts forth two

arguments on appeal.          First, defendant contends that the trial

court erred in failing to instruct the jury on second degree

murder     or,   in    the   alternative,     that    his   trial    counsel    was

ineffective for failing to request the instruction.                        Second,
                                          -2-
defendant argues that because the verdict form does not specify

whether the jury found defendant guilty of felony murder based

on   a    completed       rape    or   attempted    rape,       “this   Court   cannot

determine that the felony murder verdict rests unanimously on a

theory supported by the evidence.”

         After careful review, we: (1) find no error in defendant’s

conviction for first degree murder based on the felony murder

rule; (2) determine that defendant has failed to meet his burden

in establishing plain error with regard to his conviction for

first      degree     murder      on    the     basis      of    premeditation      and

deliberation;        and    (3)    conclude      that   defendant’s       claim     for

ineffective     assistance        of   counsel     fails    because     defendant    is

unable to establish prejudice.

                                  Procedural History

         The procedural history of this case is substantial.                        In

1999, defendant was tried capitally for the murder of Wanda

Coltrane (“Ms. Coltrane”).              State v. Poindexter, 353 N.C. 440,

441, 545 S.E.2d 414, 415 (2001).                   A jury found him guilty of

first      degree     murder      on    the     basis      of    premeditation      and

deliberation and under the felony murder rule and recommended

defendant be sentenced to death.                 Id.    Defendant was sentenced

accordingly.        Id.
                                       -3-
    In 2001, our Supreme Court reversed the conviction based on

juror misconduct during the guilt-innocence phase of the trial.

Id. at 444, 545 S.E.2d at 416.             In 2002, defendant was retried.

State v. Poindexter, 359 N.C. 287, 289, 608 S.E.2d 761, 763

(2005) (“Poindexter II”).           The jury, again, found him guilty of

first degree murder and felony murder and recommended a death

sentence.     Id.    The trial court imposed a death sentence.                 Id.

Defendant appealed his conviction.            Id.

    While his appeal was pending, defendant filed a motion for

appropriate    relief      (“MAR”)    with    our    Supreme   Court   alleging

ineffective     assistance      of        trial     counsel    and   requesting

adjudication    of   his    claim    of    mental    retardation.      State    v.

Poindexter, 357 N.C. 248, 248, 581 S.E.2d 762, 762 (2003).                     The

Supreme Court remanded the MAR to the trial court and ordered it

to conduct an evidentiary hearing on the MAR’s allegations.                    Id.

After an evidentiary hearing, the trial court entered an order

denying defendant’s request to be adjudicated mentally retarded

and defendant’s request for a new trial based on an IAC claim

alleging ineffectiveness during the guilt-innocence phase of his

trial.      Poindexter II, 359 N.C. at 289, 608 S.E.2d at 763.

However, the trial court vacated defendant’s death sentence and

ordered a new capital sentencing hearing based on his trial
                                               -4-
counsel’s      ineffective         assistance          during    the     2002    sentencing

hearing.      Id.

       Our Supreme Court reviewed the trial court’s order granting

in part and denying in part defendant’s MAR.                            Id.     It affirmed

the    trial       court’s       order     and       remanded     for    a    new     capital

sentencing hearing.              Id.      Pursuant to N.C. Gen. Stat. § 15A-

2004(d), the State decided to not proceed with resentencing and

accepted a life sentence for defendant.                         Id. at 296, 608 S.E.2d

at    767.         On    23    September       2010,    the     trial    court      sentenced

defendant      to       life    imprisonment         without     parole.         Defendant’s

current appeal raises alleged errors that occurred in the guilt-

innocence stage of his 2002 trial.

                                   Factual Background

       In 1997, defendant was indicted for killing Ms. Coltrane.

Defendant,         Ms.   Coltrane,       and    Ms.    Coltrane’s       husband,      Willard

Coltrane (“Mr. Coltrane”), had been friends for more than twenty

years.       The Coltranes regularly bought cocaine from defendant.

       On     17    December      1997,        both    Coltranes        called      defendant

numerous       times      looking      for      cocaine.         Ms.    Coltrane      picked

defendant up at his house and drove to the house of Lori Hurley

(“Ms. Hurley”), defendant’s niece.                      Ms. Hurley was not at home

at the time.             Around noon, Jaren Hulen (“Mr. Hulen”), a pest
                                           -5-
exterminator,       arrived    at    Ms.   Hurley’s       house    for    a   scheduled

treatment.     He noticed a red car parked in the driveway with the

door open and engine running.                Mr. Hulen knocked on the door,

which   was   slightly       open,   and    heard       “stirring       around”    and    a

woman’s voice calling for help.                  A few seconds later, defendant

came to the door; Mr. Hulen reported that defendant appeared

“panicked,” with his shirt and belt loose.                   Mr. Hulen heard dull

thuds and another cry for help after defendant shut the door.

After   getting      the   license     plate       number   of    the     car     in    the

driveway, Mr. Hulen drove to a nearby church and called 911.

       Also around noon that day, Deputy Nora Walbourne (“Deputy

Walbourne”) noticed a small red car parked on the shoulder of a

rural road.         When she stopped, the car sped off, and Deputy

Walbourne lost it in pursuit.               Less than twenty minutes later,

Deputy Walbourne responded to the 911 call Mr. Hulen made.                             Soon

after she arrived at Ms. Hurley’s house, the red car she had

pursued pulled into the driveway.                    Defendant was driving and

asked for her help.           Deputy Walbourne saw Ms. Coltrane slumped

over    in    the    front    passenger          seat    with     her     throat       cut.

Defendant, Ms. Coltrane, and the car were covered in blood, and

defendant appeared “wild-eyed.”
                                      -6-
    Investigators       who    arrived    on    the   scene     noted     that   Ms.

Coltrane’s shirt was pulled up around her shoulder blades, and

her bra was missing.       During a subsequent search of Ms. Hurley’s

home,    investigators    found    Ms.    Coltrane’s      bra    in     the   master

bedroom, and it appeared to have been torn or cut off.                           Ms.

Coltrane’s jeans and underwear were partly pulled down.

    An autopsy revealed that Ms. Coltrane died as a result of

numerous    cutting    injuries.      The    fatal    wound     was   a   deep   cut

across her throat.        However, she also sustained numerous other

injuries from either cutting or blunt force trauma to her face,

left arm, abdomen, and head.             Because there was no evidence of

external or internal          injury to her genital area, the sexual

assault    kit    collected    from   Ms.      Coltrane   was     not     analyzed.

Later,    investigators       confirmed     that   Ms.    Coltrane’s       injuries

occurred in Ms. Hurley’s house.

    In his statements to Deputy Walbourne and another officer

on the day of the murder, defendant claimed that two masked

gunmen were waiting for him and Ms. Coltrane when they entered

Ms. Hurley’s house.           One of the gunmen dragged her down the

hallway    to    the   bedroom.       After     the   exterminator        arrived,

defendant alleged that Ms. Coltrane broke free and began yelling

for help.        At that point, one of the gunman cut her throat.
                                      -7-
After the two men ordered defendant to drive them away from the

home, defendant carried Ms. Coltrane to the car because he knew

she could not be left alone.          Defendant dropped the men off on a

country road before returning back to Ms. Hurley’s house.

    At    trial,    a   jailhouse     informant,    Larry   Saunders      (“Mr.

Saunders”), testified that defendant told him that he and Ms.

Coltrane had been riding around smoking crack and that defendant

admitted to killing Ms. Coltrane after defendant tried to “mess

with her.”    After he cut her throat, defendant allegedly told

Mr. Saunders that he rode around with her body looking for a

place to dump it.       When he arrived back at Ms. Hurley’s house,

the police had already arrived so he had no choice but to claim

someone else had killed her.

    Although defendant had requested an instruction on second

degree   murder    in   his    1999   trial,   he   did   not   request    this

instruction in his 2002 trial.           The trial court instructed the

jury on first degree murder on the bases of felony murder and

premeditation and deliberation.          The jury found defendant guilty

of first degree murder on the basis of malice, premeditation,

and deliberation and based on the felony murder rule.

                              Grounds for Appeal
                                             -8-
     On 13 September 2012, defendant filed a petition for writ

of certiorari seeking review of the 23 September 2010 judgment

entered    by     Judge    V.     Bradford         Long.         This     Court    allowed

defendant’s       petition      for    the     purpose      of   reviewing        the   2010

judgment which was imposed based on defendant’s 2002 trial.

                                        Arguments

I.   Defendant’s Conviction              for       First   Degree       Murder    Based    on
     Felony Murder

     In challenging his conviction for first degree murder on

the basis of the felony murder rule, defendant argues that the

trial     court    erred     in       denying      his     motion   to      dismiss       for

insufficiency of the evidence.                 Specifically, defendant contends

that he is entitled to a new trial because the verdict form does

not specify whether the jury found him guilty of felony murder

on the basis of rape or attempted rape.                     Consequently, defendant

alleges that the inability to determine whether “jurors based

the felony murder verdict on the notion of a completed rape, or

not” necessitates this Court vacate his conviction for first

degree murder on the basis of felony murder.                      We disagree.

     In determining whether a trial court erred in failing to

grant a defendant’s motion to dismiss based on the insufficiency

of the evidence, this Court’s review is well-established: “Upon

defendant’s motion for dismissal, the question for the Court is
                                            -9-
whether    there       is    substantial     evidence        (1)    of   each        essential

element of the offense charged, or of a lesser offense included

therein, and (2) of defendant’s being the perpetrator of such

offense.”       State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,

455 (2000).           The trial court must review the evidence in the

light most favorable to the State.                        State v. Barnes, 334 N.C.

67, 75, 430 S.E.2d 914, 918 (1993).

      Based      on    our    caselaw,      defendant’s        argument         is    without

merit.     Essentially, defendant’s argument is that there was no

evidence presented at trial of a completed rape.                              Thus, because

some jurors may have convicted defendant for felony murder based

on a completed rape and others on an attempted rape, this Court

must vacate the verdict since it is unable to determine whether

the   verdict     rests       unanimously        on   a    theory   supported          by   the

evidence.

      However, our Supreme Court has concluded that, for purposes

of felony murder, if the evidence at trial is sufficient to

prove    the    attempted         felony,   “a    determination          of    whether      the

evidence       supported      a    completed     [felony]      is    not      necessary      to

resolve this issue.”              State v. Squires, 357 N.C. 529, 536, 591

S.E.2d 837, 842 (2003).              In Squires, the defendant was convicted

of felony murder predicated on the felony of the sale of cocaine
                                            -10-
with the use or possession of a deadly weapon and the felony of

“other murder.”         Id. at 534, 591 S.E.2d at 840.                With regard to

the felony of the sale of cocaine, the trial court instructed

the   jury    that    it    could    find     the    defendant   guilty    of    felony

murder if it found that the defendant committed or attempted to

commit a sale of cocaine with the use or possession of a deadly

weapon.      Id.     Thus, under this theory of felony murder, the jury

could   have       convicted    the    defendant       of    felony    murder    if   he

actually completed a sale of cocaine or attempted to complete a

sale.     The defendant argued that the trial court erred in not

granting his motion to dismiss for insufficiency of the evidence

because      “some    jurors   may     have    found     a   completed    sale    while

others found an attempted sale.”                   Id. at 536, 591 S.E.2d at 842.

Our Supreme Court disagreed, noting: “Even if some jurors found

a completed sale of cocaine rather than an attempted sale, this

discrepancy would not change the result.                     When a jury finds the

facts necessary to constitute one offense, it also inescapably

finds   the    facts       necessary    to     constitute     all     lesser-included

offenses of that offense.”             Id.    The Court went on to say that:

              Attempted sale of cocaine is a lesser-
              included offense of the sale of cocaine.
              Therefore, any member of the jury who found
              the elements constituting a sale of cocaine
              must necessarily have found the elements of
              attempted sale of cocaine.       Since the
                                             -11-
              evidence at trial was sufficient to prove
              attempted sale of cocaine and since all
              jurors necessarily found an attempted sale,
              a determination of whether the evidence
              supported a completed sale of cocaine is not
              necessary to resolve this issue.     We hold
              that the trial court’s submission to the
              jury of “sale of cocaine” as a predicate
              felony to support defendant’s felony murder
              conviction for [the victim’s] death was not
              error.

Id.

      Attempted rape is a lesser included offense of first degree

rape.     State v. Green, 95 N.C. App. 558, 563, 383 S.E.2d 419,

422 (1989).         Therefore, as in Squires, any member of the jury

who   found    the    elements     constituting         a     completed    rape   must

necessarily have found the elements of an attempted rape.                           If

the evidence was sufficient to prove defendant was guilty of

attempted rape, then all the jurors would have necessarily found

defendant attempted to rape Ms. Coltrane.                     Accordingly, based on

Squires, it would not be necessary to determine whether the

evidence supported a completed rape.

      “The    two    elements     of    attempted      rape    are   the   intent   to

commit rape and an overt act done for that purpose which goes

beyond    mere      preparation        but    falls    short    of   the   completed

offense.”      State v. Bell, 311 N.C. 131, 140, 316 S.E.2d 611, 616

(1984).       “Intent    to   rape      may     be   proved    circumstantially     by
                                                   -12-
inference, based upon a defendant’s actions, words, dress, or

demeanor.”          State        v.    Oxendine,          150    N.C.       App.    670,     674,    564

S.E.2d    561,       564     (2002)          (internal          quotation          marks    omitted).

Furthermore,         an    “overt           act    manifesting          a    sexual        purpose    or

motivation on the part of the defendant is adequate evidence of

an intent to commit rape.”                    Id.

       Considering the evidence in a light most favorable to the

State, a reasonable jury could infer that defendant intended to

rape    Ms.    Coltrane.              Investigators             found       Ms.    Coltrane’s       bra,

which had been forcibly removed, at Ms. Hurley’s house.                                             When

Ms. Coltrane’s body was found, her shirt was forced up around

her shoulder blades and her jeans and underwear were partly

pulled down.          Moreover, Mr. Saunders testified that defendant

allegedly      admitted          to     him       that    he     tried       to    “get     with”    Ms.

Coltrane.       While it is uncontroverted that Ms. Coltrane had not

suffered any trauma to her genital area and that the sexual

assault       kit    sample           was     never       tested,       the       State     presented

substantial         evidence           that       defendant        intended          to     rape     Ms.

Coltrane and that he engaged in an overt act for that purpose.

Thus,    since       the     evidence         was        sufficient         to     prove    defendant

attempted       to        rape        Ms.     Coltrane          and      because          all   jurors

necessarily          found        an        attempted          rape,        the     trial       court’s
                                         -13-
submission      to    the   jury      based     on       the   predicate     felony     of

attempted rape or rape does not constitute error, see Squires,

357 N.C. App. at 536, 591 S.E.2d at 842, and the trial court did

not   err     in     denying   his      motion       to    dismiss.         Defendant’s

conviction for first degree murder on the basis of felony murder

is left undisturbed.

II.   Defendant’s Conviction for First Degree Murder on the Basis
      of Premeditation and Deliberation

      Next,    with     regard     to   defendant’s            conviction    for     first

degree murder on the basis of premeditation and deliberation,

defendant argues that the trial court committed plain error in

failing to instruct the jury on second degree murder.                               In the

alternative,       defendant     contends       that       his    trial    counsel     was

constitutionally         ineffective       in        failing      to      request     this

instruction.         Even assuming arguendo that the trial court erred

in refusing to instruct on second degree murder,                             this error

would not affect the jury’s verdict finding defendant guilty of

first degree murder based on the felony murder rule.                         Therefore,

defendant is unable to meet his burden of demonstrating plain

error.

      Because      defendant     failed       to     request      an   instruction      on

second   degree      murder,     we   review       for    plain   error.      State     v.

Carter, 366 N.C. 496, 497, 739 S.E.2d 548, 549 (2013); State v.
                                        -14-
Boyett, __ N.C. App. __, __, 735 S.E.2d 371, 374 (2012).                       Our

Supreme Court has recently clarified the plain error standard of

review:

               For error to constitute plain error, a
               defendant    must    demonstrate    that    a
               fundamental error occurred at trial.       To
               show that an error was fundamental, a
               defendant   must  establish   prejudice—that,
               after examination of the entire record, the
               error had a probable impact on the jury’s
               finding that the defendant was guilty.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal citations and quotation marks omitted).

    Here, the jury was presented with two theories of first

degree    murder:      (1)     premeditation     and   deliberation;     and   (2)

felony murder.         The jury convicted defendant of first degree

murder under both theories.                 Assuming arguendo that the trial

court erred by failing to instruct on second degree murder,

defendant is unable to establish that the error would have a

probable impact on the jury finding defendant guilty for first

degree murder based on felony murder.                   In other words, that

supposed       error   would    only   affect    defendant’s    conviction     for

first    degree    murder      based   on    premeditation   and     deliberation.

Since     we    have   found     no    error    with   regard   to    defendant’s

conviction for first degree murder based on felony murder, as

discussed above, defendant is unable to establish plain error.
                                             -15-
       With    regards        to    defendant’s        claim       for    ineffective

assistance of counsel based on his counsel’s failure to request

an    instruction     on   second        degree     murder,   we    conclude    it    is

without merit.        To establish that defendant’s counsel fell below

an    objective     standard       of    reasonableness,      the   defendant       must

satisfy the two-prong test created by the United States Supreme

Court in Washington v. Strickland, 466 U.S. 668, 280 L. Ed. 2d

674    (1984),      and   adopted       by   our    Supreme   Court      in   State    v.

Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985):

              In order to meet this burden [the] defendant
              must satisfy a two part test.      First, the
              defendant    must   show    that     counsel’s
              performance was deficient. This requires
              showing that counsel made errors so serious
              that counsel was not functioning as the
              “counsel” guaranteed the defendant by the
              Sixth Amendment. Second, the defendant must
              show   that    the   deficient    performance
              prejudiced   the   defense.   This    requires
              showing that counsel’s error were so serious
              as to deprive the defendant of a fair trial,
              a trial whose result is reliable.

(quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693).

Since defendant’s conviction for felony murder was free from

error and that judgment is not affected by the trial court’s

alleged error in refusing to instruct on second degree murder,

defendant      is    unable    to       establish    the   second     prong    of     the
                                         -16-
Strickland        test:     that   he     was     prejudiced        as     a     result.

Consequently, defendant’s argument is overruled.

                                      Conclusion

      In summary, we find no error in defendant’s conviction for

first degree murder based on felony murder pursuant to Squires

and   that     conviction     remains     undisturbed.         In   addition,          even

assuming arguendo         that the trial court erred in                    refusing to

instruct     on    second    degree     murder,    this   error      would       have   no

impact on the jury’s finding defendant guilty of first degree

murder based on the felony murder rule.                     Thus, defendant is

unable   to    establish      plain     error.      Finally,        with    regard      to

defendant’s ineffective assistance of counsel claim, defendant

is    unable      to   establish      prejudice,    the    second        prong     under

Strickland.       Therefore, defendant’s claim has no merit.



      CONVICTION OF FIRST             DEGREE     MURDER   ON    BASIS       OF    FELONY
      MURDER: NO ERROR.

      CONVICTION FOR FIRST DEGREE MURDER ON THE                                BASIS    OF
      PREMEDITATION AND DELIBERATION: NO PLAIN ERROR.


      Judges CALABRIA and ROBERT N. HUNTER, JR. concur.

      Report per Rule 30(e).
