State v. MatsoakeÂ, 243 N.C. App. 651

Victim was attacked on a Kill Devil Hills beach in June 2003: she was grabbed, choked, bitten, and had sexual intercourse (semen recovered from vaginal swabs and skin); medical exam showed vaginal/cervical trauma and sand in the vagina.
A composite sketch circulated; defendant’s then-wife Ruth Hart later testified she once heard a teardrop hit a newspaper and saw defendant crying while looking at that sketch.
Hart reported suspicions years later; hair clippers seized from defendant produced DNA that matched sperm from the victim’s vaginal swab; a subsequent buccal swab from defendant also matched that DNA.
Defendant was indicted for first-degree rape (2008), extradited from South Africa (2012), tried in 2014, convicted, and sentenced to 240–297 months; he appealed.
On appeal defendant challenged (1) admission of Hart’s testimony about his crying as a confidential marital communication and (2) the trial court’s refusal to instruct the jury on attempted rape as a lesser-included offense.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Matsoake)	Held
Whether Hart’s testimony about defendant crying while viewing the composite sketch is protected by the marital confidential-communication privilege	Testimony was not a privileged confidential communication because crying was not a deliberate communication to the spouse	Crying was a form of nonverbal/spousal communication and thus privileged	Admission of Hart’s testimony was not error; crying was not a confidential spousal communication
Whether the trial court erred by refusing to instruct on attempted first-degree rape as a lesser-included offense	Evidence established penetration (medical findings, victim statements, semen inside vagina), so no conflict on penetration to warrant the lesser instruction	Victim’s courtroom testimony (“I think he had a couple of times but he was choking me…”) was equivocal and created a conflict on penetration requiring the attempted-rape instruction	No error; the evidence did not create a genuine conflict on penetration and an attempted-rape instruction was not required

State v. Rollins, 363 N.C. 232 (2009) (marital communication privilege is held by both spouses and may bar testimony about confidential communications)
State v. Holmes, 330 N.C. 826 (1992) (acts or gestures may be privileged if intended as communications induced by the marital relationship)
State v. Johnson, 317 N.C. 417 (1986) (lesser-included attempted-rape instruction required when evidence about penetration conflicts)
State v. Combs, 226 N.C. App. 87 (2013) (penetration, however slight, is sufficient for first-degree rape)
State v. Hardy, 299 N.C. 445 (1980) (no lesser-included instruction required when State’s evidence on each element is clear and positive)
State v. Brown, 112 N.C. App. 390 (1993) (trial court must instruct on a lesser-included offense only when evidence supports it)