#### STATE OF NORTH CAROLINA v. CHARLES THOMAS VAWTERS

No. 7521SC235

(Filed 18 June 1975)

‘ Appeal by defendant from Albright, Judge. Judgment entered 16 January 1975 in Superior Court, Forsyth County. Heard in the Court of Appeals 13 May 1975.

Defendant was charged in a bill of indictment, proper in form, with the felony of assault with intent to commit rape.

The State’s evidence tends to show the following: During the evening of 12 July 1974 Robin Kiger, age 12, went to her sister’s home. Her friend, Sunday Norman, age 9, went with her. When Robin and Sunday knocked on the door, no one answered. However, the door was unlocked and they went in. Robin’s sister was not at home. Defendant and a companion were in the house drinking an alcoholic beverage. Defendant grabbed Robin, threw her to the floor, partially disrobed her, and tried to have sexual intercourse with her. Robin fought, screamed, and resisted defendant, and he was unable to accomplish his purpose. Robin finally escaped and ran from the house.

The defendant’s evidence tended to show the following: Robin’s sister and husband went to the movie and left defendant and his companion in their house. Defendant and his companion were drinking alcoholic beverages. Robin does not remember what happened that night and testified against him only at the connivance of her father.

The jury returned a verdict of guilty as charged.

*346 Attorney General Edmisteh, by Assistant Attorney General Myron C. Banks, for the State.'

Hamrick, Doughton and Newton, by James A. Harrill, Jr., for the defendant.

BROCK, Chief Justice.

We have carefully examined this record on appeal.'In our opinion defendant received a fair trial free from prejudicial error. But for the forceful and determined resistance of.Robin Kiger, defendant would have been subject to a charge of rape.

No. error.,,

Judges Morris and Hedrick concur.