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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA02-126 NORTH CAROLINA COURT OF APPEALS Filed: STATE OF NORTH CAROLINA v. JOHN WILLIAM WESLEY AARON Appeal by defendant from judgment entered 13 September 2001 by Judge Russell J. Lanier, Jr. in Superior Court, Onslow County. Heard in the Court of Appeals 26 August 2002. Attorney General Roy Cooper, by Special Deputy General Kathryn Jones Cooper, for the State. Attorney Onslow County No. 00 CRS 54895 3 September 2002

Ellis, Hooper, Warlick & Morgan, L.L.P., by Deke S. Owens, for defendant-appellant. WYNN, Judge. Defendant was found guilty of second degree rape and was sentenced to a minimum term of 107 months and a maximum term of 138 months. The State presented evidence tending to show that on 16 May 2000, defendant saw the prosecuting witness, with whom he had formerly shared a residence with two other people, walking down the road with a friend. Defendant asked the prosecuting witness to go Defendant assured the prosecuting witness

for a ride with him.

that he would return her to the Trade Mart convenience store where her friend would be waiting. The prosecuting witness agreed to go

-2for a ride with defendant. The prosecuting witness thought

defendant would drive just "around the circle"; however, defendant drove to a place that was unfamiliar to the prosecuting witness. Defendant parked the vehicle and asked the prosecuting witness to have sex with him. She refused. Defendant pushed her down in the

seat, removed her underwear and shorts, held her down with one hand, and forced her to have sexual intercourse. After completing

intercourse, he brought her back to the Trade Mart convenience store. Later that evening her stomach began to hurt. She and her

friend went to the hospital, where a rape kit was administered to her. At the hospital the prosecuting witness spoke to Detective She told him that defendant made sexual

Steven Jeffrey Geisinger.

advances towards her and that she told defendant she was not interested in having sex with him. She asked defendant to take her

back to the Trade Mart but defendant did not, instead taking her to the park. Defendant continued to make sexual advances towards her Defendant

and she continued to state that she was not interested.

pushed her over to the side, removed her clothing and his clothing, held her down on her side, and had vaginal intercourse with her. The emergency room nurse who collected the evidence for the rape kit testified that no evidence of scratches, marks or trauma was found. However, semen was found in her crotch.

Defendant initially denied knowing the prosecuting witness. Subsequently, he stated and testified at trial that he and the prosecuting witness engaged in consensual vaginal intercourse.

-3The sole issue on appeal is whether the trial court erred by denying defendant's motion to dismiss at the close of all the evidence. Upon a motion to dismiss, a trial court must determine whether there is substantial evidence (1) of each essential element of the charged offense and (2) of perpetration of the offense by the defendant. 117 (1980). State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114,

The court must view the evidence in the light most

favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). State v. Benson, The defendant's

evidence is to be disregarded except to the extent it explains, clarifies or is consistent with the State's evidence. State v.

Furr, 292 N.C. 711, 715, 235 S.E.2d 193, 196, cert. denied, 434 U.S. 924, 54 L. Ed. 2d 281 (1977). In evaluating the evidence, the

court is to determine only whether the evidence is sufficient to allow the jury to draw a reasonable inference of the defendant's guilt of the crime charged. 296 S.E.2d 649, 652 (1982). To convict a defendant of second degree rape in violation of N.C. Gen. Stat.

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