STATE of North Carolina
v.
James E. NORMAN.
No. 7215SC338.
Court of Appeals of North Carolina.
May 24, 1972.*669 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Richard N. League for the State.
Fred Darlington, III, Burlington, for defendant appellant.
HEDRICK, Judge.
The defendant assigns as error the Court's denial of his motion for judgment as of nonsuit made at the close of the State's evidence and renewed at the close of all the evidence. The defendant contends the evidence was insufficient to show an intent to commit rape.
The requisites of the crime with which defendant is charged were recently stated by Justice Sharp in State v. Hudson, 280 N.C. 74, 185 S.E.2d 189 (1971):
". . . To convict a defendant on the charge of an assault with an intent to commit rape the State must prove not only an assault but that the defendant intended to gratify his passion on the person of the woman, at all events and notwithstanding any resistance on her part. It is not necessary that defendant retain that intent throughout the assault; if he, at any time during the assault, had an intent to gratify his passion upon the woman, notwithstanding any resistance on her part, the defendant would be guilty of the offense. * * * To convict a defendant of an assault with intent to commit rape `an actual physical attempt forcibly to have carnal knowledge need not be shown.' 75 C.J.S. Rape § 77, p. 557 (1952)."
Although Miss Brewer was unable to testify as to what occurred from the time she was choked into unconsciousness until she arrived at the Johnson home almost one hour later, we think her testimony as to events leading up to the cruel and brutal assault upon her together with the evidence as to her physical and emotional condition after the assault is sufficient to raise an inference that the assault was sexually motivated and that the defendant intended to gratify his passion upon her notwithstanding any resistance on her part. State v. Gammons, 260 N.C. 753, 133 S.E.2d 649 (1963). We need not speculate as to why the defendant did not accomplish *670 his purpose. State v. Hudson, supra; State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968).
When the evidence is considered in the light most favorable to the State, we hold it is sufficient to take the case to the jury and to support the verdict.
Next the defendant assigns as error the Court's failure to instruct the jury on the "lesser included offenses" of assault with a deadly weapon with intent to kill inflicting serious injury; assault with a deadly weapon inflicting serious injury; and assault inflicting serious injury.
G.S. § 15-169 provides:
"Conviction of assault, when included in charge.On the trial of any person for rape, or any felony whatsoever, when the crime charged includes an assault against the person, it is lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding; and when such verdict is found the court shall have power to imprison the person so found guilty of an assault, for any term now allowed by law in cases of conviction when the indictment was originally for the assault of a like character."
In discussing this statute in State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954), Justice Bobbitt (now Chief Justice) said,
". . . The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. Hence, there is no such necessity if the State's evidence tends to show a completed robbery and there is no conflicting evidence relating to elements of the crime charged. Mere contention that the jury might accept the State's evidence in part and might reject it in part will not suffice."
In the present case all of the evidence tends to show that the defendant committed the crime charged in the bill of indictment and there was no conflicting evidence relating to any element of the crime charged. This assignment of error is overruled.
The defendant's final assignment of error relates to the Court's instructions to the jury as to the use of circumstantial evidence in proving specific intent. Intent to rape is an essential element of the crime charged, and the judge's instruction that intent is an attitude or emotion of the mind seldom if ever susceptible of proof by direct evidence but ordinarily to be proved by facts and circumstances from which it may be inferred and that in determining the presence or absence of the element of intent, the jury may consider the acts and conduct of the defendant and the general circumstances existing at the time of the alleged commission of the offense charged is substantially the same as that approved many times by the appellate courts of this State. State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626 (1964); State v. Watson, 222 N.C. 672, 24 S.E.2d 540 (1943). We find the judge's instructions to the jury to be fair, correct, and free from prejudicial error. In the defendant's trial in the Superior Court, we find no prejudicial error.
No error.
BRITT and PARKER, JJ., concur.