State v. DrumgoldAnnotate this Case
254 S.E.2d 531 (1979)
STATE of North Carolina v. Robert Lee DRUMGOLD.
Supreme Court of North Carolina.
May 17, 1979.
*533 Thomas F. East and G. Hugh Moore, Jr., Louisburg, for defendant.
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.
The defendant contends the trial court erred in not submitting second degree rape to the jury as an alternative to a verdict of first degree rape. We agree; therefore, the defendant must be granted a new trial.
It is well settled that "a defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternate verdicts." State v. Palmer, 293 N.C. 633, 643-44, 239 S.E.2d 406, 413 (1977). On the other hand, the trial court need not submit lesser degrees of a crime to the jury "when the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime." State v. Harvey, 281 N.C. 1, 13-14, 187 S.E.2d 706, 714 (1972). (Emphasis added.)
In this case, a conviction of first degree rape depended, inter alia, on proof that the defendant overcame Mrs. Epps' resistance by the use of a deadly weapon. See G.S. 14-21(1)(b) (1977 Cum.Supp.). The defendant presented evidence through several witnesses that he did not have a gun on the day in question. Therefore, there was conflicting evidence on an essential element of the crime charged. Furthermore, there was evidence that at one point the defendant threatened to kill Mrs. Epps, and Officer Bowden testified that when he saw Mrs. Epps on 6 June 1978, "she had what appeared to be an abrasion on the left side of her face." The jury could have found that *534 Mrs. Epps submitted to intercourse with the defendant because of fear or duress. See generally, State v. Dull, 289 N.C. 55, 220 S.E.2d 344 (1975), death sentence vacated in 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211 (1976). Under these facts, the trial court should have submitted second degree rape to the jury as a possible verdict. Its failure to do so entitles the defendant to a new trial.
We need not discuss defendant's two other assignments of error, as they are not likely to recur at the new trial.
For the foregoing reason, we order that defendant be granted a