concurring in the result.
I concur in the result of Part I of the majority opinion but write separately to articulate my disagreement with part of the reasoning of the majority opinion. I concur fully in Part II of the majority opinion.
The majority opinion focuses on the due process concerns raised by the short form indictment for first degree rape, as set out in N.C. *536Gen. Stat. § 15-144.1. I share in the majority’s worry that “the State, unable to prove rape or attempted rape, could nonetheless obtain a conviction for an uncharged assault occurring before or after the sexual encounter.” However, it seems that the majority opinion forecloses the use of § 15-144.1 to support any conviction for assault on a female, which renders that portion of § 15-144.1 a nullity.
The majority opinion relies on State v. Jeffries, a case that predates the Supreme Court’s holding that assault on a female is not a lesser included offense of rape. 57 N.C. App. 416-17, 291 S.E.2d 860 (1982); State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 363, 370 (1988). In Jeffries, the defendant was charged with and convicted of second degree rape. Jeffries, 57 N.C. App. at 416, 291 S.E.2d at 859. He argued that he was entitled to instructions on the lesser included offense of assault on a female and put forth two possible “occurrences” that he argued could support a charge of assault on a female: (1) before penetration, he wrestled with the victim, kissed her, and pressed his body against hers; and (2) during intercourse, he hit the victim. Id. at 418, 291 S.E.2d at 860. With respect to the first “occurrence,” we explored the hypothetical situation that the victim had consented to intercourse. Id., 291 S.E.2d at 861. Assuming consent, we concluded that the defendant’s acts of wrestling, kissing, and pressing his body against the victim’s were part of his sexual “preliminaries” and could not be considered to be an assault. Id. Because a jury could not reasonably find both that the- intercourse was consensual and that the “sexual preliminaries” constituted an assault on a female, the trial court properly withdrew the charge of assault on a female from jury consideration. Id. at 419, 291 S.E.2d at 861.
We then turned to the second “occurrence,” during which the victim allegedly struck the defendant during hypothetically consensual intercourse and, in retaliation, the defendant struck her back, while still engaged in hypothetically consensual intercourse. Id. Again assuming that the intercourse was consensual, as the defendant alleged, we concluded the strike was “evidence that [the] defendant committed an assault on a female completely independent of and distinct from, as.opposed to being inherent in and incident to, his forceful intercourse with [the victim] against her will.” Id. The remainder of our analysis of the second occurrence focused on demonstrating that the strike and the rape involved “two distinct occurrences,” rather than a “greater offense and a lesser included offense.” Id. at 420, 291 S.E.2d at 861. We explained that because the strike had occurred after the two had already commenced in*537tercourse and was not used to subdue the victim, the strike could not be considered a lesser included offense of the rape. Id. at 419-20, 291 S.E.2d at 861. We concluded that, because the defendant had only been indicted for second degree rape, he could not be convicted of assault on a female based upon the strike during intercourse and thus was not entitled to an instruction on assault on a female. Id. at 420, 291 S.E.2d at 861-62.
The majority opinion relies upon Jeffries to explain why defendant’s indictment does not support an instruction on assault on a female, but this reliance creates the following conundrum: A defendant who assaults a victim during consensual intercourse, as in the Jeffries hypothetical, cannot receive an instruction on assault on a female because the assault is not integral to the rape. However, a defendant who assaults a victim immediately before or after intercourse, but who alleges that the victim consented to the intercourse, also cannot receive an instruction on assault on a female because the assault is not integral to the rape. It appears, then, that there is not a set of facts that would support an instruction for assault on a female stemming from a rape indictment, despite the clear directive in N.C. Gen. Stat. § 15-144.1 that the short form rape indictment supports a verdict of assault on a female.
In my opinion, the Jeffries court was constrained by the existing rule that assault on a female was a lesser included offense of rape and, as a result, the reasoning is not completely transferable to the case at hand. In Jeffries, the scenario put forth by the defendant was that the victim consented to the intercourse, but not to the strike during the intercourse. That factual scenario appears to be the type that would support an instruction for assault on a female, were Jeffries before us today: the intercourse was consensual, but the attendant violence was not. The majority opinion appears to foreclose the possibility .of using a short form rape indictment to support a conviction for assault on a female when intercourse with the victim is consensual, but any attendant violence against the victim is not. My worry is that the majority opinion too narrowly construes Jeffries and its application to the case at hand.
Nevertheless, I agree that defendant in this case was not entitled to an instruction on the lesser, alternative offense of assault on a female. As defendant correctly avers, a proper short-form indictment for first degree rape will also “support a verdict of guilty of rape in the first degree, rape in the second degree, attempted rape or assault on a female.” N.C. Gen. Stat. § 15-144.1(a) (2007). How*538ever, simply because an indictment may support a particular charge, the trial court is not required to give that charge to the jury. Both our Supreme Court and the U.S. Supreme Court have held that “due process requires an instruction on a lesser-included offense only ‘if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.’ ” State v. Conaway, 339 N.C. 487, 514, 453 S.E.2d 824, 841 (1995) (quoting Beck v. Alabama, 447 U.S. 625, 635 65 L. Ed. 2d 392 (1980)). If “there is no evidence to negate [the elements of the crime charged] other than [the] defendant’s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of [a lesser included offense.]” State v. Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 771 (2002) (quotations and citations omitted).
Here, the only evidence to negate the elements of first or second degree rape was defendant’s denial that he raped the victim and his assertion that their intercourse was consensual. Moreover, the jury was given the choice between first degree and second degree rape and still returned a verdict of first degree rape after fewer than thirty minutes of deliberation. “The crime[s] of first degree rape and second degree rape contain essentially the same elements. The sole distinction between first degree rape and second degree rape is the element of the use or display of a dangerous weapon.” State v. Barkley, 144 N.C. App. 514, 524, 551 S.E.2d 131, 138 (2001) (quotations and citation omitted). It is clear that the jury did not believe defendant’s testimony that he did not use or display a dangerous weapon and found his testimony that their intercourse was consensual similarly incredible. A jury would not have rationally found defendant guilty of assault on a female and acquitted him of first or second degree rape. Accordingly, I agree that defendant was not entitled to an instruction on the lesser-included offense of assault on a female and that the trial court did not err by declining to so instruct the jury.