N.C.P.I.—Crim. 207.11

NOTE WELL: This instruction is valid for offenses committed

before December 1, 2015. For offenses committed on or after

December 1, 2015, use N.C.P.I.—Crim. 207.11A.

Marriage is no longer a defense where the alleged crime was

committed after July 5, 1993. N.C. Gen. Stat. § 14-27.8 (1993).

The defendant has been charged with attempted first degree rape.

Under the law and the evidence in this case, it is your duty to return one

of the following verdicts:

(1) guilty of attempted first degree rape;

(2) guilty of attempted second degree rape; or

(3) not guilty.

For you to find the defendant guilty of attempted first degree rape, the

State must prove three things beyond a reasonable doubt:

First, that the defendant intended to engage in vaginal intercourse with

the alleged victim by force without the alleged victim’s consent and against

the alleged victim’s will. (Consent induced by fear is not consent at law).

Vaginal intercourse is penetration, however slight, of the female sex organ by

the male sex organ. (The actual emission of semen is not necessary.)

Second, that at the time the defendant had this intent, the defendant

performed an act which was calculated and designed to bring about vaginal

intercourse by force and against the will of the alleged victim and which came

so close to bringing it about that in the ordinary and likely course of things

the defendant would have completed such intercourse had the defendant not

been stopped or prevented from completing his apparent course of action.

(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.)

And Third, that the defendant

(A) [[employed] [displayed]

(1) [a dangerous or deadly weapon. (Name weapon) is a

dangerous or deadly weapon.] [A dangerous or deadly

weapon is a weapon which is likely to cause death or serious

bodily injury. (In determining whether a particular object is a

dangerous or deadly weapon, you should consider the nature

of the object, the manner in which it was used and the size

and strength of the defendant as compared to the alleged

victim.)]]

(2) [an object that the alleged victim reasonably believed was a

dangerous or deadly weapon. 1 A dangerous or deadly weapon

is a weapon which is likely to cause death or serious bodily

injury. (In determining whether a particular object is a

dangerous or deadly weapon you should consider its nature,

the manner in which it was used, and the size and strength

of the defendant as compared with the alleged victim).]]

(B) [inflicted serious personal 2 injury upon the alleged victim or any

other person injured.]

(C) [was aided or abetted by one or more other persons. A defendant

would be aided or abetted by another person if that person [was

present at the time the rape was attempted and knowingly

[advised] [encouraged] [instigated] [aided] him to commit the

crime] (or) [though not physically present at the time the rape was

attempted, shared the defendant's criminal purpose and to the

defendant's knowledge was aiding or was in a position to aid him at

the time the rape was attempted.]

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date, the defendant intended to have vaginal intercourse

with the alleged victim by force and against the alleged victim’s will and that

the defendant performed [an act] [acts] which [was] [were] calculated and

designed to bring about vaginal intercourse by force and against the alleged

victim's will and would have resulted in such intercourse had the defendant

not been [stopped] [prevented] from completing his apparent course of

action, and that the defendant

(A) [employed] [displayed] a [weapon] [object] (and that [this was]

[the alleged victim reasonably believed that this was] a dangerous

or deadly weapon).]

(B) [inflicted serious personal injury upon the alleged victim] [another

person].

(C) [was aided and abetted by another person(s).]

it would be your duty to return a verdict of guilty of attempted first degree

rape. If you do not so find or have a reasonable doubt as to one or more of

these things you would not return a verdict of guilty of attempted first degree

rape but would determine whether the defendant is guilty of attempted second

degree rape. Attempted second degree rape differs from attempted first

degree rape only in that it is not necessary for the State to prove beyond a

reasonable doubt that the defendant

(A) [[employed] [displayed] [a dangerous or deadly weapon] [an

object which the alleged victim reasonably believed was a

dangerous or deadly weapon]]

(B) [inflicted serious personal injury upon [the alleged victim] [another

person]]

(C) [was aided and abetted by another person(s)].

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date, the defendant intended to have vaginal intercourse

with the alleged victim by force and against the alleged victim’s will and that

the defendant performed [an act] [acts] which [was] [were] calculated and

designed to bring about vaginal intercourse by force and against the alleged

victim's will and would have resulted in such intercourse had the defendant

not been [stopped] [prevented] from completing his apparent course of action

it would be your duty to return a verdict of guilty of attempted second degree

rape. 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. 3