State v. Baker

IN THE SUPREME COURT OF NORTH CAROLINA

No. 35PA16

Filed 9 June 2017

STATE OF NORTH CAROLINA

v.
WILLIAM MILLER BAKER

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 781 S.E.2d 851 (2016), vacating in part

defendant’s convictions after appeal from a judgment entered on 8 August 2014 by

Judge Paul C. Ridgeway in Superior Court, Wake County, and remanding for

resentencing. Heard in the Supreme Court on 22 March 2017.

Joshua H. Stein, Attorney General, by Anne M. Middleton, Special Deputy
Attorney General, for the State-appellant.

Jennifer Harjo, Public Defender, New Hanover County, by Brendan O’Donnell,
Assistant Public Defender, for defendant-appellee.

ERVIN, Justice.

The issue presented for our consideration in this case is whether the record

contains sufficient evidence to support defendant’s conviction for attempted first-

degree rape of a child in violation of N.C.G.S. § 14-27.2A(a).1 In vacating defendant’s

attempted rape conviction, the Court of Appeals held that “[t]he State failed to

The General Assembly recodified this offense as N.C.G.S. § 14-27.23(a), effective 1
1

December 2015. Act of July 29, 2015, ch. 181, secs. 5(a), 48, 2015 N.C. Sess. Laws 460, 461,
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Opinion of the Court

present substantial evidence of all elements of” that offense. State v. Baker, ___ N.C.

App. ___, ___, 781 S.E.2d 851, 856 (2016). After examining the record in light of the

applicable legal standard, we conclude that the evidence adequately supported the

jury’s determination that defendant had committed the offense of attempted first-

degree rape of a child in violation of N.C.G.S. § 14-27.2A(a) and reverse the Court of

Appeals’ decision with respect to this issue.

According to the State, defendant committed two specific sexual assaults

against Amanda2 between the dates of 1 April 2008 and 21 October 2009, one of which

allegedly occurred in Amanda’s bedroom and the other of which allegedly occurred on

a couch in the family residence. At the time of these incidents, defendant, who had

been born in 1981, was the boyfriend of Amanda’s mother and lived in the family

home with Amanda, her mother, and Amanda’s two brothers, the younger of whom

was defendant’s son.

Amanda claimed that, during the summer of 2009, defendant entered her

bedroom, in which she was lying on the bed; removed his own shorts and Amanda’s

shorts and underwear; and began touching her vagina. Although Amanda was

“kicking and screaming” as he did so, defendant “put his penis in [her] vagina.”

Defendant’s assaultive conduct ended when Amanda’s mother, who had been sleeping

2 “Amanda” is a pseudonym that we, like the Court of Appeals, have employed for ease
of reading and to protect the identity of the child.

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Opinion of the Court

downstairs, entered the bedroom and discovered defendant, who was unclothed, with

Amanda, whose shorts and underwear were around her knees. After making this

discovery, Amanda’s mother told Amanda to keep her door locked.

Amanda’s mother described the bedroom incident in somewhat different terms.

While sleeping on a downstairs couch during the summer of 2009, Amanda’s mother

heard what she believed to be her youngest child falling out of bed, as he had a habit

of doing. After checking on the child and his brother, who were both asleep, Amanda’s

mother opened the door to Amanda’s bedroom, in which she found defendant, who

was asleep and clad in nothing other than his underwear, lying partially on Amanda’s

bed. Amanda’s mother could not determine whether Amanda was clothed because

she was lying face down on the bed beneath a blanket. According to Amanda’s

mother, defendant had a history of “blood sugar” problems and would, on occasion,

get up in the night, act in an angry or disoriented manner, and pass out. Amanda’s

mother thought that defendant’s presence in Amanda’s room on the occasion in

question resulted from just such a “low blood sugar” episode. Although Amanda told

her mother that defendant had hurt her, she understood Amanda’s statement to be

focused upon the fact that defendant had collapsed on top of her, and she told Amanda

to lock her bedroom door to prevent the recurrence of such an injury. Defendant, on

the other hand, told Amanda’s mother that he had no memory of what had caused

him to be in Amanda’s bedroom or what had happened there.

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Opinion of the Court

In the autumn of 2009, Amanda arrived home from school to find defendant in

an intoxicated condition. As Amanda sat down on the couch to do her homework,

defendant began touching Amanda’s chest. Although defendant attempted to have

Amanda lie down on the couch, she was able to move away from him after he appeared

to have fallen asleep. When defendant sat up, Amanda grabbed a phone, fled to her

bedroom, entered the closet, and telephoned her mother with a request that her

mother have someone come get her. Amanda was subsequently picked up by her

grandparents.

Amanda’s mother, on the other hand, remembered that Amanda had called her

at work in the autumn of 2009 and told her that defendant’s conduct was frightening

her. Although Amanda did not specify what defendant had done to frighten her,

Amanda’s mother honored her daughter’s request that she be picked up.

Amanda claimed that, prior to the bedroom incident, defendant had committed

repeated sexual assaults against her. According to Amanda, defendant had touched

her, put his penis in her vagina, and “grabbed [her] from [her] arms and told [her]

not to tell anybody.” Although Amanda could not recall how old she was when these

earlier incidents occurred, she knew that she “was little.”

Amanda initially disclosed that she had been sexually abused during a

conversation with some school friends during the fall of 2009. Even though a school

counselor reported Amanda’s allegations to Wake County Child Protective Services,

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Opinion of the Court

Amanda told both Danielle Doyle, an investigator with Wake County Child Protective

Services, and Detective Peggy Marchant of the Cary Police Department that no

sexual abuse had occurred. After receiving a new report that defendant had abused

Amanda, Ms. Doyle and Detective Marchant spoke with Amanda again. Although

she was initially hesitant to discuss sexual abuse-related issues during this

interview, Amanda admitted that she was having nightmares, that she had not been

sleeping well, and that her level of nightmares, including flashbacks about being

touched, had been increasing as the date upon which defendant was scheduled for

release from prison (in which he was serving a sentence based upon an unrelated

conviction) neared. When Amanda disclosed incidents involving attempted penile-

vaginal contact and the fondling of her breasts and genital area, Ms. Doyle

terminated the interview and made an appointment for Amanda to be evaluated by

SafeChild Advocacy Center.

On 21 November 2011, Sara Kirk, a child abuse evaluation specialist at the

Center, interviewed Amanda. During that interview, Amanda stated that, a couple

of years earlier, defendant had touched her in an inappropriate manner and

attempted to put his penis in her vagina. In describing the bedroom incident,

Amanda replied, “I don’t think it did,” when asked if defendant’s penis had entered

her private part. Amanda did not claim that defendant’s penis had penetrated her

vagina at the time of the bedroom incident until a 14 July 2013 meeting with

investigating officers and representatives of the District Attorney’s office.

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Opinion of the Court

Holly Warner, a nurse practitioner at the Center, found “no signs of acute,

meaning recent, or healed trauma to [Amanda’s] vaginal area.” However, Ms.

Warner also stated that such results were not uncommon even if vaginal penetration

had occurred.

Jeanine Bolick, a licensed clinical social worker, conducted counseling sessions

with Amanda from 8 May 2012 through 11 June 2013. In light of Amanda’s

reluctance to discuss sexual abuse-related issues and her tearful affect when the

subject of sexual abuse was mentioned, Ms. Bolick diagnosed Amanda as suffering

from post-traumatic stress disorder. On the other hand, Ms. Bolick admitted that

she had not observed specific symptoms of sexual abuse during her sessions with

Amanda and that post-traumatic stress disorder can have a number of causes.

Defendant denied that he had ever attempted to insert his penis into Amanda’s

vagina, that he had ever entered Amanda’s bedroom for that purpose, or that he had

ever touched Amanda inappropriately. In addition, defendant denied that there had

ever been a time in the autumn of 2009 in which Amanda had been alone with

defendant after returning home from school. Finally, defendant denied having ever

passed out in Amanda’s bedroom for reasons relating to his diabetic condition.

On 24 January 2012, the Wake County grand jury returned a bill of indictment

charging defendant with attempted first-degree rape of a child in violation of N.C.G.S.

§ 14-27.2(a)(1) and taking indecent liberties with a child in violation of N.C.G.S. § 14-

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202.1(a)(1). On 6 August 2013, the Wake County grand jury returned a superseding

indictment charging defendant with three counts of attempted first-degree rape of a

child in violation of N.C.G.S. § 14-27.2A(a), one count of first-degree rape of a child in

violation of N.C.G.S. 14-27.2A(a), and three counts of taking indecent liberties with

a child in violation of N.C.G.S. 14-202.1(a)(1). On 29 October 2013, the Wake County

grand jury returned superseding indictments charging defendant with first-degree

rape of a child in violation of N.C.G.S. § 14-27.2A(a), attempted first-degree rape of a

child in violation of N.C.G.S. § 14-27.2A(a), and taking indecent liberties with a child

in violation of N.C.G.S. § 14-202.1(a)(1), with all three offenses allegedly having

occurred on or about 1 April 2008 through 21 October 2009. The charges against

defendant came on for trial before the trial court and a jury at the 4 August 2014

criminal session of the Superior Court, Wake County. At the conclusion of the State’s

evidence and at the close of all of the evidence, defendant unsuccessfully sought to

have the charges that had been lodged against him dismissed for insufficiency of the

evidence.

At the jury instruction conference, the trial court indicated, without objection

from either party, that it intended to inform the jury that, before the jury could

convict defendant of any of the three charges that had been lodged against him, it

had to find that each charge was supported by evidence relating to a separate,

discrete event and that the verdict sheet would set forth “three counts,” with there

being “no lesser-included offenses that [the court was] aware of.” The trial court

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Opinion of the Court

began and ended its instructions with respect to each of the substantive offenses that

defendant had been charged with committing by stating that, in order to find

defendant guilty, the jury had to find beyond a reasonable doubt that the conduct

supporting the offense in question involved a discrete event that was separate from

any of the events upon which the jury relied in convicting defendant of having

committed any other offense. For example, the trial court instructed the jury with

respect to the issue of defendant’s guilt of attempted first-degree rape of a child that:

The defendant has been charged with attempted
rape of a child. For you to find the defendant guilty of
attempted rape of a child the state must prove four things
beyond a reasonable doubt:

If you have found the defendant guilty of rape of a
child in count one and/or indecent liberties with a child in
count three, then the state must prove beyond a reasonable
doubt that these four things in count two occurred on an
occasion separate from the event you found to have
occurred in count one and separate from the event you
found to have occurred in count three.

The state must prove beyond a reasonable doubt
that, first, defendant intended to engage in vaginal
intercourse with the victim. Vaginal intercourse is
penetration, however slight, of the female sex organ by the
male organ.

Second, that at the time of the act alleged the victim
was a child under the age of thirteen years.

Third, that at the time of the act alleged the
defendant was at least eighteen years of age.

And fourth, the defendant performed an act that was
calculated and designed to accomplish vaginal intercourse

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Opinion of the Court

with the victim and that such conduct came so close to
bringing about vaginal intercourse that in the ordinary
course of events the defendant would have completed the
act with the victim had he not been stopped or prevented.
Mere preparation or planning is not enough to constitute
such an act, but the act need not necessarily be the last act
required to complete the offense.

If you find from the evidence beyond a reasonable
doubt that . . . in or about the period from April 1, 2008
through October 21, 2009 but if you have found the
defendant guilty of rape of a child in count one separate
from that occasion or if you have found the defendant guilty
of indecent liberties with a child in count three separate
from that occasion, the defendant intended to engage in
vaginal intercourse with the victim and that at that time
the victim was a child under the age of thirteen years and
that the defendant was at least eighteen years of age and
that the defendant performed an act . . . which in the
ordinary course of events would have resulted in vaginal
intercourse by the defendant with the victim . . . had not
the defendant been stopped or prevented from completing
this apparent course of action, it would be your duty to
return a verdict of guilty. If you do not so find or have a
reasonable doubt as to one or more of these things, it would
be your duty to return a verdict of not guilty.

On 8 August 2014, the jury returned a verdict finding defendant guilty of

attempted first-degree rape of a child and taking indecent liberties with a child. In

light of the jury’s inability to reach a unanimous verdict with respect to the issue of

defendant’s guilt of first-degree rape of a child, the trial court declared a mistrial with

respect to that count of the superseding indictment. After accepting the jury’s verdict,

the trial court consolidated defendant’s convictions for judgment and sentenced

defendant to a term of 240 to 297 months of imprisonment. Defendant noted an

appeal to the Court of Appeals from the trial court’s judgment.

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Opinion of the Court

In seeking relief from the trial court’s judgment before the Court of Appeals,

defendant argued, among other things, that the trial court had erred by denying his

motion to dismiss the attempted rape charge for insufficiency of the evidence.3 More

specifically, defendant contended that the evidence concerning the couch incident did

not suffice to support an attempted rape conviction and that the evidence concerning

the bedroom incident, when taken in the light most favorable to the State, showed

that defendant had committed a completed, rather than an attempted, rape. In

addition, defendant argued that, to the extent that “the trial court’s instruction

permitted the jury to find the defendant guilty of attempted rape as a lesser included

offense of rape,” the delivery of that instruction constituted plain error.

Although the State argued that the record contained sufficient evidence to

support defendant’s attempted rape conviction, it appeared to concede that the

testimony regarding the various statements that Amanda had made during the

investigative process had not been admitted for substantive purposes and could not

be considered in analyzing the sufficiency of the evidence to support defendant’s

attempted rape conviction. In addition, the State acknowledged that, with respect to

the bedroom incident, Amanda “did, in fact, testify to a completed act of vaginal

intercourse.” Even so, however, the State maintained that the record evidence

concerning both the bedroom and the couch incidents was sufficient to support

3Defendant did not challenge the validity of his conviction for taking indecent liberties
with a child before the Court of Appeals.

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Opinion of the Court

defendant’s attempted rape conviction. Finally, the State argued that the trial court

had not erred, much less committed plain error, in the course of instructing the jury.

In the course of vacating defendant’s attempted rape conviction, the Court of

Appeals noted that the parties agreed that defendant’s conviction could only be

sustained on the basis of evidence concerning either the bedroom incident or the

couch incident. Baker, ___ N.C. App. at ___, 781 S.E.2d at 855. Moreover, the Court

of Appeals determined that the substantive evidence contained in the present record

concerning the bedroom incident “could support a conviction for a completed rape”

but did not constitute “substantive evidence of attempted rape.” Id. at ___, 781 S.E.2d

at 855 (citing State v. Batchelor, 190 N.C. App. 369, 373-75, 660 S.E.2d 158, 162

(2008)). Finally, the Court of Appeals determined that the evidence concerning the

couch incident did not suffice to show that defendant had “intended to rape Amanda.”

Id. at ___, 781 S.E.2d at 856. As a result, the Court of Appeals concluded that the

trial court had erred by denying defendant’s motion to dismiss the attempted rape

charge, declined to address defendant’s challenge to the trial court’s jury instructions,

vacated defendant’s attempted rape conviction, and remanded this case to the trial

court for resentencing. Id. at ___, 781 S.E.2d at 856. On 9 June 2016, we allowed the

State’s discretionary review petition.

In the brief that it filed before this Court, the State argues that the Court of

Appeals erred by vacating defendant’s attempted rape conviction on sufficiency of the

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Opinion of the Court

evidence grounds given that prior decisions from both this Court and the Court of

Appeals establish that evidence reflecting a completed rape can support an attempt

conviction.4 In response, defendant argues, among other things, that the decisions

upon which the State relies “do not actually stand for the proposition that legally

sufficient evidence of a completed crime will necessarily support a verdict of a lesser

included crime” and that the State’s contention “that evidence of the greater offense

supports a verdict of guilt on the lesser offense cannot be squared with” this Court’s

decisions to the effect that, “where the evidence of the greater offense is positive and

there is no evidence of the lesser included offense, the lesser included offense may not

be considered by the jury and the defendant may not be convicted of it.” In addition,

defendant argues that the attempted rape charge was not submitted to the jury as a

lesser included offense of rape and that the jury’s inability to reach a unanimous

verdict with respect to the completed rape charge shows that the jury had doubts

about the veracity of Amanda’s testimony. Furthermore, to the extent that the prior

decisions of this Court and the Court of Appeals suggest that, despite the absence of

any evidence tending to show that an attempted rape had occurred, any error in

submitting the issue of a defendant’s guilt of a lesser included offense was favorable,

4 In addition, the State argued that the non-specific evidence concerning the history
of defendant’s assaults upon Amanda set out in Amanda’s trial testimony and the evidence
concerning the couch incident both provide independent support for defendant’s attempted
rape conviction. However, given our determination that the substantive evidence concerning
the bedroom incident adequately supported defendant’s attempted rape conviction, we need
not address either of these additional arguments any further in this opinion.

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Opinion of the Court

rather than adverse to, the defendant, this Court has retreated from such statements

in subsequent decisions. In defendant’s view, a verdict convicting defendant of a

crime for which there is no evidentiary support violates defendant’s fundamental

rights to due process and a unanimous verdict. Finally, defendant argues that, if the

attempted rape charge had not been submitted to the jury, there is a reasonable

possibility that the jury would have been unable to reach a unanimous verdict with

respect to the completed rape charge or found defendant not guilty of that offense.5

“In ruling on a motion to dismiss, the trial court need
determine only whether there is substantial evidence of
each essential element of the crime and that the defendant
is the perpetrator.” Substantial evidence is that amount of

5 In addition to the arguments discussed in the text of this opinion, defendant has
asserted, in reliance upon this Court’s decisions in North Carolina School Boards Ass’n v.
Moore, 359 N.C. 474, 614 S.E.2d 504 (2005), and Weil v. Herring, 207 N.C. 6, 175 S.E. 836
(1934), that the State waived the right to argue that evidence tending to show that a
completed rape occurred sufficed to support defendant’s attempted rape conviction given that
the State failed to advance this argument prior to filing its discretionary review petition.
However, neither of the decisions upon which defendant relies provides adequate support for
this argument given that Weil involved a direct appeal from the trial court to this Court in
which the appellant sought to raise an argument which had not been presented for the trial
court’s consideration, 207 N.C. at 10, 175 S.E. at 838, and Moore involved a situation in which
the defendant-appellants sought to advance an argument based upon a state constitutional
provision that they had failed to present before either the trial court or the Court of Appeals,
359 N.C. at 481, 510, 614 S.E.2d at 508, 526. In this case, however, the State, which was the
appellee before the Court of Appeals, is challenging a decision of the Court of Appeals
overturning a trial court decision in its favor. As a result of the fact that “[t]he question for
review is whether the ruling of the trial court was correct” rather than “whether the reason
given therefor is sound or tenable,” State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650
(citing State v. Blackwell, 246 N.C. 642, 644, 99 S.E.2d 867, 869 (1957)), cert. denied, 484 U.S.
916, 98 L. Ed.2d 224 (1987), and the fact that the State has consistently taken the position
that the record evidence sufficed to support the submission of the issue of defendant’s guilt
of attempted rape to the jury, we do not believe that the State has waived the right to argue
in support of the trial court’s decision to deny defendant’s dismissal motion that evidence
that defendant committed a completed rape sufficed to support his conviction for attempted
rape.

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Opinion of the Court

relevant evidence necessary to persuade a rational juror to
accept a conclusion.

State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (citations omitted) (quoting

State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998)), cert. denied, 537 U.S.

1005, 154 L. Ed. 2d 403 (2002). In making this determination:

The evidence is to be considered in the light most
favorable to the State; the State is entitled to every
reasonable intendment and every reasonable inference to
be drawn therefrom; contradictions and discrepancies are
for the jury to resolve and do not warrant dismissal; and
all of the evidence actually admitted, whether competent
or incompetent, which is favorable to the State is to be
considered by the court in ruling on the motion.

State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980) (citations omitted).

“A person is guilty of rape of a child if the person is at least 18 years of age and

engages in vaginal intercourse with a victim who is a child under the age of 13 years.”

N.C.G.S. § 14-27.2A(a) (2013). “ ‘[V]aginal intercourse’ . . . means the slightest

penetration of the sexual organ of the female by the sexual organ of the male.” State

v. Johnson, 317 N.C. 417, 435, 347 S.E.2d 7, 18 (1986) (citations omitted), superseded

by statute, N.C.G.S. § 8C-1, Rule 404(b), on other grounds as recognized in State v.

Moore, 335 N.C. 567, 594-96, 440 S.E.2d 797, 812-14, cert. denied, 513 U.S. 898, 130

L. Ed. 2d 174 (1994). “The elements of an attempt to commit a crime are: ‘(1) the

intent to commit the substantive offense, and (2) an overt act done for that purpose

which goes beyond mere preparation, but (3) falls short of the completed offense.’ ”

State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000) (quoting State v. Miller,

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Opinion of the Court

344 N.C. 658, 667, 477 S.E.2d 915, 921 (1996), and citing State v. Ball, 344 N.C. 290,

305, 474 S.E.2d 345, 354 (1996), cert. denied, 520 U.S. 1180, 137 L. Ed. 2d 561

(1997))).

In State v. Roy, defendant Roy was indicted for rape. 233 N.C. 558, 558, 64

S.E.2d 840, 840 (1951). However, the prosecutor elected to proceed against defendant

Roy based solely upon a charge of assault with intent to commit rape at the time that

the case was called for trial. Id. at 558, 64 S.E.2d at 840-41. In rejecting defendant

Roy’s challenge to the denial of his motion for nonsuit on appeal, which was

predicated on the fact that all of the evidence showed a completed rape rather than

an attempt, id. at 559, 64 S.E.2d at 841, we noted that “it is well settled that an

indictment for an offense includes all the lesser degrees of the same crime,” id. at 559,

64 S.E.2d at 841 (citations omitted); indicated that, “although all the evidence may

point to the commission of the graver crime charged in a bill of indictment, the jury’s

verdict for an offense of a lesser degree will not be disturbed, since it is favorable to

the defendant,” id. at 559, 64 S.E.2d at 841 (citations omitted); and concluded that

“[t]he evidence adduced in the trial below was ample to support the verdicts

rendered,” id. at 560, 64 S.E.2d at 841. As a result, this Court clearly held in Roy

that evidence of a completed rape sufficed to support an attempted rape conviction.

Similarly, in State v. Canup, the prosecuting witness testified at trial that the

defendant had “stuck his penis in her vagina” despite the fact that the grand jury had

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Opinion of the Court

indicted the defendant for attempted second-degree rape. 117 N.C. App. 424, 426,

451 S.E.2d 9, 10 (1994). In response to the defendant’s argument that the evidence

did not suffice to support his attempted rape conviction, the Court of Appeals stated

that “[e]vidence that this defendant continued to pursue his malevolent purpose and

achieved penetration does not decriminalize his prior overt acts” since “[t]he

completed commission of a crime must of necessity include an attempt to commit the

crime.” Id. at 428, 451 S.E.2d at 11. According to the Court of Appeals, “nothing in

the philosophy of juridical science requires that an attempt must fail in order to

receive recognition.” Id. at 428, 451 S.E.2d at 11 (quoting Rollin M. Perkins & Ronald

N. Boyce, Criminal Law 612 (3d ed. 1982) [hereinafter Criminal Law]). However,

[a] successful attempt to commit a crime will not support
two convictions and penalties,[—]one for the attempt and
the other for the completed offense. This is for the obvious
reason that whatever is deemed the appropriate penalty
for the total misconduct can be imposed upon conviction of
the offense itself, but this does not require the unsound
conclusion that proof of the completed offense disproves the
attempt to commit it.

Id. at 428, 451 S.E.2d at 11-12 (quoting Criminal Law 612 (emphasis added and

footnotes omitted)). As a result, the Court of Appeals determined that the record

evidence “would have supported the defendant’s being charged with either second

degree rape or attempted second degree rape and convicted of either offense.” Id. at

428, 451 S.E.2d at 12.

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Approximately two decades later, the Court of Appeals held, in reliance upon

Canup, that the evidence sufficed to preclude allowance of the defendant’s motion to

dismiss an attempted larceny charge for insufficiency of the evidence in a case in

which the State had indicted the defendant for attempted larceny while all the

evidence tended to show that a completed larceny had occurred. State v. Primus, 227

N.C. App. 428, 430-32, 742 S.E.2d 310, 312-13 (2013). In doing so, the court rejected

the defendant’s argument that guilt of the crime of attempted larceny requires that

the defendant’s act supporting the attempt charge fall short of the competed offense

in order to be sufficient to support an attempt conviction, id. at 429-32, 742 S.E.2d at

312-13, a conclusion that accords with the modern view concerning criminal liability

for attempt. 2 Wayne R. LaFave, Substantive Criminal Law § 11.5, at 230 (2d ed.

2003) (stating that, “[a]lthough the crime of attempt is sometimes defined as if failure

were an essential element, the modern view is that a defendant may be convicted on

a charge of attempt even if it is shown that the crime was completed”). As a result, a

careful review of the relevant decisions of this Court and the Court of Appeals

demonstrates that evidence of a completed rape is sufficient to support an attempted

rape conviction.

As defendant emphasizes, this Court has held that

[w]here there is conflicting evidence as to an essential
element of the crime charged, the court should instruct the
jury with regard to any lesser included offense supported
by any version of the evidence. If the lesser included offense

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Opinion of the Court

is not supported by the evidence, it should not be
submitted, regardless of conflicting evidence.

State v. Jones, 304 N.C. 323, 331, 283 S.E.2d 483, 488 (1981). For that reason, in the

event that the State has elicited positive evidence of every element of the completed

crime of rape and the defendant claims that his encounter with the alleged victim

was consensual or never occurred, the trial court should not allow the jury to consider

the issue of the defendant’s guilt of the lesser included offense of attempted rape.

State v. Nelson, 341 N.C. 695, 698, 462 S.E.2d 225, 226 (1995). “The rule that a jury

can believe all, part, or none of a party’s evidence,” id. at 698, 462 S.E.2d at 226 (citing

State v. Faircloth, 297 N.C. 388, 255 S.E.2d 366 (1979), superseded by statute,

N.C.G.S. § 15A-924, on other grounds as recognized in State v. Silas, 360 N.C. 377,

627 S.E.2d 604 (2006)), “does not apply when to let it do so could result in the jury’s

finding of guilt of a crime which is not supported by the evidence of either party,” id.

at 698, 462 S.E.2d at 226. However, the decisions upon which defendant relies,

including Nelson, 341 N.C. at 698, 462 S.E.2d at 226; State v. Smith, 315 N.C. 76,

102, 337 S.E.2d 833, 850 (1985); State v. Horner, 310 N.C. 274, 283, 311 S.E.2d 281,

287-88 (1984); State v. Strickland, 307 N.C. 274, 287, 298 S.E.2d 645, 654 (1983),

abrogated in part on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775

(1986); and State v. Jones, 249 N.C. 134, 139, 105 S.E.2d 513, 517 (1958), address

whether the defendant was entitled to the submission of the issue of his or her guilt

of a lesser included offense to the jury rather than the entirely separate issue of

whether the evidence sufficed to support the defendant’s conviction. For that reason,

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Opinion of the Court

the proper resolution of defendant’s challenge to the sufficiency of the evidence to

support his attempted rape conviction hinges upon cases such as Roy, Canup, and

Primus rather than upon the decisions on which defendant relies.

Defendant’s reliance upon this Court’s opinions in State v. Ray, 299 N.C. 151,

261 S.E.2d 789 (1980), and State v. Arnold, 329 N.C. 128, 404 S.E.2d 822 (1991),

which deal with the extent to which the erroneous submission of the issue of the

defendant’s guilt of a lesser included offense that lacked adequate evidentiary

support constituted prejudicial error, is equally misplaced. As was the case with

defendant’s argument in reliance upon Nelson, Smith, Horner, Strickland, and Jones,

the present case involves the issue of whether evidence of the defendant’s guilt of the

completed offense suffices to support an attempt conviction rather than the issue of

whether the jury should have been allowed to consider the issue of the defendant’s

guilt of a lesser included offense that lacked adequate evidentiary support. As if that

were not enough to render this case distinguishable from Ray and Arnold, neither of

those decisions involved a situation in which the issue of the defendant’s guilt of

attempt was erroneously submitted to the jury despite the fact that all of the evidence

showed the commission of a completed offense. Finally, although its decision is

obviously not binding upon us, the Court of Appeals held in State v. Wade, 49 N.C.

App. 257, 271 S.E.2d 77 (1980), cert. denied, 315 N.C. 596, 341 S.E.2d 37 (1986), that

the defendant was not entitled to relief on appeal based upon the trial court’s

erroneous decision to instruct the jury concerning the issue of the defendant’s guilt of

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 STATE V. BAKER

Opinion of the Court

the lesser included offense of attempted rape in a case in which all the evidence

tended to show that the defendant was guilty of a completed rape on the grounds

that, “[i]f there were error from the instruction complained of, such was favorable to

[the] defendant and harmless.” Id. at 261-62, 271 S.E.2d at 80. As a result, Ray and

Arnold, which address an issue that is not before the Court in this instance, have no

bearing on the proper resolution of this case either.

Thus, for all these reasons, we conclude that the record evidence tending to

show that a completed rape had occurred in Amanda’s bedroom sufficed to support

defendant’s conviction for attempted rape and that the trial court did not, for that

reason, err in denying defendant’s motion to dismiss the attempted rape charge for

insufficiency of the evidence. In addition, given the fact that the issue of defendant’s

guilt of attempted rape was not submitted to the jury as a lesser included offense of

first-degree rape of a child, there is no need for further consideration of defendant’s

argument that the trial court committed plain error by allowing the jury to convict

him of attempted rape as a lesser included offense of first-degree rape of a child. As

a result, the Court of Appeals’ decision vacating the judgment that the trial court

entered based upon defendant’s conviction for attempted first-degree rape of a child

is reversed.

REVERSED.

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