N.C.P.I.—Crim. 207.40A

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 sexual offense;

(2) guilty of attempted second degree sexual offense; or

(3) not guilty.

For you to find the defendant guilty of attempted first degree sexual

offense, the State must prove three things beyond a reasonable doubt:

First, that the defendant intended to engage in a sexual act 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). A sexual

act means

(A) [cunnilingus, which is any touching, however slight, by the lips or

tongue of one person to any part of the female sex organ of

another.]

(B) [fellatio, which is any touching by the lips or tongue of one person

and the male sex organ of another.]

(C) [analingus, which is any touching by the lips or tongue of one

person and the anus of another.]

(D) [anal intercourse, which is any penetration, however slight, of the

anus of any person by the male sexual organ of another.]

(E) [any penetration, however slight, by an object into the [genital]

[anal] opening of a person's body.]

NOTE WELL: N.C. Gen. Stat. § 14-27.1(4) provides that it shall be an

affirmative defense to the fifth type of sexual act in (E) above that the

penetration was for an accepted medical purpose. If there is evidence

of such a purpose, instruct accordingly at the end of the charge and in

the mandate. See N.C.P.I. Crim. 306.10 for an instruction on Accepted

Medical Purpose.

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

performed an act which was calculated and designed to bring about a sexual

act by force and against the victim's will, and which came so close to bringing

it about that in the ordinary and likely course of things the defendant would

have completed the sexual act had the defendant not been stopped or

prevented from completing the defendant’s apparent course of action.

(Mere preparation or mere 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 the 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 the 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.)]]

(B) [inflicted serious personal injury2 upon [the alleged victim] [another

person.]]

(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 sexual offense was committed and

knowingly [advised] [encouraged] [instigated] [aided] the

defendant to commit the crime] (or) [though not physically present

at the time the sexual offense was committed, shared the

defendant's criminal purpose and, to the defendant's knowledge,

was aiding or was in a position to aid the defendant at the time the

sexual offense was committed.]

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

about the alleged date, the defendant intended to engage in a sexual act 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 a sexual act by force and against the alleged victim's

will and would have resulted in such an act had the defendant not been

[stopped] [prevented] from completing the defendant’s apparent course of

action, and that the defendant

(A) [employed] [displayed] a [weapon] [an 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] [other persons].]

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

sexual offense. 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 sexual offense but would consider whether the defendant is guilty of

attempted second degree sexual offense. Attempted second degree sexual

offense differs from attempted first degree sexual offense 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] [other persons].]

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

about the alleged date, the defendant intended to engage in a sexual act 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 a sexual act by force and against the alleged victim's

will and would have resulted in such an act had the defendant not been

[stopped] [prevented] from completing the defendant’s apparent course of

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

degree sexual offense. 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.

NOTE WELL: If a party requests an instruction on Assault on a

Female, see State v. Martin, 222 N.C. App. 213 (2012), where the

defendant was convicted of two counts of first-degree sexual

offense, the North Carolina Court of Appeals held that assault on

a female is not a lesser included offense of first-degree sexual

offense, because to convict for first-degree sexual offense, it need

not be shown that the victim is a female, that the defendant is a

male, or that the defendant is at least 18 years of age.

Simple Assault may still be an appropriate lesser included

offense. If so, use N.C.P.I.—Crim. 208.40.