An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-536

NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v.

RONALD LEE PUGH

Randolph County

No. 97 CRS 17484

Appeal by defendant from judgment entered 23 September 2010 

by Judge V. Bradford Long in Randolph County Superior Court. 

Heard in the Court of Appeals 23 October 2013.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Danielle Marquis Elder, for the State.

Appellate Defender Staples Hughes for defendant.

HUNTER, Robert C., Judge.

Defendant Ronald Lee Pugh appeals the judgment sentencing 

him to life imprisonment without parole entered upon his 

conviction for first degree murder on the bases of premeditation 

and deliberation and felony murder. Defendant puts forth two 

arguments on appeal. First, defendant contends that the trial 

court erred in failing to instruct the jury on second degree 

murder or, in the alternative, that his trial counsel was 

ineffective for failing to request the instruction. Second, 
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defendant argues that because the verdict form does not specify 

whether the jury found defendant guilty of felony murder based 

on a completed rape or attempted rape, “this Court cannot 

determine that the felony murder verdict rests unanimously on a 

theory supported by the evidence.” 

After careful review, we: (1) find no error in defendant’s 

conviction for first degree murder based on the felony murder 

rule; (2) determine that defendant has failed to meet his burden 

in establishing plain error with regard to his conviction for 

first degree murder on the basis of premeditation and 

deliberation; and (3) conclude that defendant’s claim for 

ineffective assistance of counsel fails because defendant is 

unable to establish prejudice.

Procedural History

The procedural history of this case is substantial. In 

1999, defendant was tried capitally for the murder of Wanda 

Coltrane (“Ms. Coltrane”). State v. Poindexter, 353 N.C. 440, 

441, 545 S.E.2d 414, 415 (2001). A jury found him guilty of 

first degree murder on the basis of premeditation and 

deliberation and under the felony murder rule and recommended 

defendant be sentenced to death. Id. Defendant was sentenced 

accordingly. Id.
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In 2001, our Supreme Court reversed the conviction based on 

juror misconduct during the guilt-innocence phase of the trial. 

Id. at 444, 545 S.E.2d at 416. In 2002, defendant was retried. 

State v. Poindexter, 359 N.C. 287, 289, 608 S.E.2d 761, 763 

(2005) (“Poindexter II”). The jury, again, found him guilty of 

first degree murder and felony murder and recommended a death 

sentence. Id. The trial court imposed a death sentence. Id. 

Defendant appealed his conviction. Id. 

While his appeal was pending, defendant filed a motion for 

appropriate relief (“MAR”) with our Supreme Court alleging 

ineffective assistance of trial counsel and requesting 

adjudication of his claim of mental retardation. State v. 

Poindexter, 357 N.C. 248, 248, 581 S.E.2d 762, 762 (2003). The 

Supreme Court remanded the MAR to the trial court and ordered it 

to conduct an evidentiary hearing on the MAR’s allegations. Id. 

After an evidentiary hearing, the trial court entered an order 

denying defendant’s request to be adjudicated mentally retarded 

and defendant’s request for a new trial based on an IAC claim 

alleging ineffectiveness during the guilt-innocence phase of his 

trial. Poindexter II, 359 N.C. at 289, 608 S.E.2d at 763. 

However, the trial court vacated defendant’s death sentence and 

ordered a new capital sentencing hearing based on his trial 
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counsel’s ineffective assistance during the 2002 sentencing 

hearing. Id.

Our Supreme Court reviewed the trial court’s order granting 

in part and denying in part defendant’s MAR. Id. It affirmed 

the trial court’s order and remanded for a new capital 

sentencing hearing. Id. Pursuant to N.C. Gen. Stat. § 15A2004(d), the State decided to not proceed with resentencing and 

accepted a life sentence for defendant. Id. at 296, 608 S.E.2d 

at 767. On 23 September 2010, the trial court sentenced 

defendant to life imprisonment without parole. Defendant’s 

current appeal raises alleged errors that occurred in the guiltinnocence stage of his 2002 trial.

Factual Background

In 1997, defendant was indicted for killing Ms. Coltrane. 

Defendant, Ms. Coltrane, and Ms. Coltrane’s husband, Willard 

Coltrane (“Mr. Coltrane”), had been friends for more than twenty 

years. The Coltranes regularly bought cocaine from defendant. 

On 17 December 1997, both Coltranes called defendant 

numerous times looking for cocaine. Ms. Coltrane picked 

defendant up at his house and drove to the house of Lori Hurley 

(“Ms. Hurley”), defendant’s niece. Ms. Hurley was not at home 

at the time. Around noon, Jaren Hulen (“Mr. Hulen”), a pest 
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exterminator, arrived at Ms. Hurley’s house for a scheduled 

treatment. He noticed a red car parked in the driveway with the 

door open and engine running. Mr. Hulen knocked on the door, 

which was slightly open, and heard “stirring around” and a 

woman’s voice calling for help. A few seconds later, defendant 

came to the door; Mr. Hulen reported that defendant appeared 

“panicked,” with his shirt and belt loose. Mr. Hulen heard dull 

thuds and another cry for help after defendant shut the door. 

After getting the license plate number of the car in the 

driveway, Mr. Hulen drove to a nearby church and called 911. 

Also around noon that day, Deputy Nora Walbourne (“Deputy

Walbourne”) noticed a small red car parked on the shoulder of a 

rural road. When she stopped, the car sped off, and Deputy 

Walbourne lost it in pursuit. Less than twenty minutes later, 

Deputy Walbourne responded to the 911 call Mr. Hulen made. Soon 

after she arrived at Ms. Hurley’s house, the red car she had 

pursued pulled into the driveway. Defendant was driving and 

asked for her help. Deputy Walbourne saw Ms. Coltrane slumped 

over in the front passenger seat with her throat cut. 

Defendant, Ms. Coltrane, and the car were covered in blood, and 

defendant appeared “wild-eyed.” 
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Investigators who arrived on the scene noted that Ms. 

Coltrane’s shirt was pulled up around her shoulder blades, and 

her bra was missing. During a subsequent search of Ms. Hurley’s 

home, investigators found Ms. Coltrane’s bra in the master 

bedroom, and it appeared to have been torn or cut off. Ms. 

Coltrane’s jeans and underwear were partly pulled down. 

An autopsy revealed that Ms. Coltrane died as a result of 

numerous cutting injuries. The fatal wound was a deep cut 

across her throat. However, she also sustained numerous other 

injuries from either cutting or blunt force trauma to her face, 

left arm, abdomen, and head. Because there was no evidence of 

external or internal injury to her genital area, the sexual 

assault kit collected from Ms. Coltrane was not analyzed. 

Later, investigators confirmed that Ms. Coltrane’s injuries 

occurred in Ms. Hurley’s house. 

In his statements to Deputy Walbourne and another officer

on the day of the murder, defendant claimed that two masked 

gunmen were waiting for him and Ms. Coltrane when they entered 

Ms. Hurley’s house. One of the gunmen dragged her down the 

hallway to the bedroom. After the exterminator arrived, 

defendant alleged that Ms. Coltrane broke free and began yelling 

for help. At that point, one of the gunman cut her throat. 
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After the two men ordered defendant to drive them away from the 

home, defendant carried Ms. Coltrane to the car because he knew 

she could not be left alone. Defendant dropped the men off on a 

country road before returning back to Ms. Hurley’s house. 

At trial, a jailhouse informant, Larry Saunders (“Mr. 

Saunders”), testified that defendant told him that he and Ms. 

Coltrane had been riding around smoking crack and that defendant 

admitted to killing Ms. Coltrane after defendant tried to “mess 

with her.” After he cut her throat, defendant allegedly told 

Mr. Saunders that he rode around with her body looking for a 

place to dump it. When he arrived back at Ms. Hurley’s house, 

the police had already arrived so he had no choice but to claim 

someone else had killed her. 

Although defendant had requested an instruction on second 

degree murder in his 1999 trial, he did not request this 

instruction in his 2002 trial. The trial court instructed the 

jury on first degree murder on the bases of felony murder and 

premeditation and deliberation. The jury found defendant guilty 

of first degree murder on the basis of malice, premeditation, 

and deliberation and based on the felony murder rule. 

Grounds for Appeal
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On 13 September 2012, defendant filed a petition for writ 

of certiorari seeking review of the 23 September 2010 judgment 

entered by Judge V. Bradford Long. This Court allowed 

defendant’s petition for the purpose of reviewing the 2010 

judgment which was imposed based on defendant’s 2002 trial. 

Arguments

I. Defendant’s Conviction for First Degree Murder Based on 

Felony Murder

In challenging his conviction for first degree murder on 

the basis of the felony murder rule, defendant argues that the 

trial court erred in denying his motion to dismiss for 

insufficiency of the evidence. Specifically, defendant contends 

that he is entitled to a new trial because the verdict form does 

not specify whether the jury found him guilty of felony murder 

on the basis of rape or attempted rape. Consequently, defendant 

alleges that the inability to determine whether “jurors based 

the felony murder verdict on the notion of a completed rape, or 

not” necessitates this Court vacate his conviction for first 

degree murder on the basis of felony murder. We disagree.

In determining whether a trial court erred in failing to 

grant a defendant’s motion to dismiss based on the insufficiency 

of the evidence, this Court’s review is well-established: “Upon 

defendant’s motion for dismissal, the question for the Court is 
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whether there is substantial evidence (1) of each essential 

element of the offense charged, or of a lesser offense included 

therein, and (2) of defendant’s being the perpetrator of such 

offense.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 

455 (2000). The trial court must review the evidence in the 

light most favorable to the State. State v. Barnes, 334 N.C. 

67, 75, 430 S.E.2d 914, 918 (1993).

Based on our caselaw, defendant’s argument is without 

merit. Essentially, defendant’s argument is that there was no 

evidence presented at trial of a completed rape. Thus, because 

some jurors may have convicted defendant for felony murder based 

on a completed rape and others on an attempted rape, this Court 

must vacate the verdict since it is unable to determine whether 

the verdict rests unanimously on a theory supported by the 

evidence. 

However, our Supreme Court has concluded that, for purposes 

of felony murder, if the evidence at trial is sufficient to 

prove the attempted felony, “a determination of whether the 

evidence supported a completed [felony] is not necessary to 

resolve this issue.” State v. Squires, 357 N.C. 529, 536, 591 

S.E.2d 837, 842 (2003). In Squires, the defendant was convicted 

of felony murder predicated on the felony of the sale of cocaine 
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with the use or possession of a deadly weapon and the felony of 

“other murder.” Id. at 534, 591 S.E.2d at 840. With regard to 

the felony of the sale of cocaine, the trial court instructed 

the jury that it could find the defendant guilty of felony 

murder if it found that the defendant committed or attempted to 

commit a sale of cocaine with the use or possession of a deadly 

weapon. Id. Thus, under this theory of felony murder, the jury 

could have convicted the defendant of felony murder if he 

actually completed a sale of cocaine or attempted to complete a 

sale. The defendant argued that the trial court erred in not 

granting his motion to dismiss for insufficiency of the evidence 

because “some jurors may have found a completed sale while 

others found an attempted sale.” Id. at 536, 591 S.E.2d at 842. 

Our Supreme Court disagreed, noting: “Even if some jurors found 

a completed sale of cocaine rather than an attempted sale, this 

discrepancy would not change the result. When a jury finds the 

facts necessary to constitute one offense, it also inescapably 

finds the facts necessary to constitute all lesser-included 

offenses of that offense.” Id. The Court went on to say that:

Attempted sale of cocaine is a lesserincluded offense of the sale of cocaine. 

Therefore, any member of the jury who found 

the elements constituting a sale of cocaine 

must necessarily have found the elements of 

attempted sale of cocaine. Since the 
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evidence at trial was sufficient to prove 

attempted sale of cocaine and since all 

jurors necessarily found an attempted sale, 

a determination of whether the evidence 

supported a completed sale of cocaine is not 

necessary to resolve this issue. We hold 

that the trial court’s submission to the 

jury of “sale of cocaine” as a predicate 

felony to support defendant’s felony murder 

conviction for [the victim’s] death was not 

error.

Id.

Attempted rape is a lesser included offense of first degree 

rape. State v. Green, 95 N.C. App. 558, 563, 383 S.E.2d 419, 

422 (1989). Therefore, as in Squires, any member of the jury 

who found the elements constituting a completed rape must 

necessarily have found the elements of an attempted rape. If 

the evidence was sufficient to prove defendant was guilty of 

attempted rape, then all the jurors would have necessarily found 

defendant attempted to rape Ms. Coltrane. Accordingly, based on 

Squires, it would not be necessary to determine whether the 

evidence supported a completed rape. 

“The two elements of attempted rape are the intent to 

commit rape and an overt act done for that purpose which goes 

beyond mere preparation but falls short of the completed 

offense.” State v. Bell, 311 N.C. 131, 140, 316 S.E.2d 611, 616 

(1984). “Intent to rape may be proved circumstantially by 
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inference, based upon a defendant’s actions, words, dress, or 

demeanor.” State v. Oxendine, 150 N.C. App. 670, 674, 564 

S.E.2d 561, 564 (2002) (internal quotation marks omitted). 

Furthermore, an “overt act manifesting a sexual purpose or 

motivation on the part of the defendant is adequate evidence of 

an intent to commit rape.” Id. 

Considering the evidence in a light most favorable to the 

State, a reasonable jury could infer that defendant intended to 

rape Ms. Coltrane. Investigators found Ms. Coltrane’s bra, 

which had been forcibly removed, at Ms. Hurley’s house. When 

Ms. Coltrane’s body was found, her shirt was forced up around 

her shoulder blades and her jeans and underwear were partly 

pulled down. Moreover, Mr. Saunders testified that defendant 

allegedly admitted to him that he tried to “get with” Ms. 

Coltrane. While it is uncontroverted that Ms. Coltrane had not 

suffered any trauma to her genital area and that the sexual 

assault kit sample was never tested, the State presented 

substantial evidence that defendant intended to rape Ms. 

Coltrane and that he engaged in an overt act for that purpose. 

Thus, since the evidence was sufficient to prove defendant 

attempted to rape Ms. Coltrane and because all jurors 

necessarily found an attempted rape, the trial court’s 
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submission to the jury based on the predicate felony of 

attempted rape or rape does not constitute error, see Squires, 

357 N.C. App. at 536, 591 S.E.2d at 842, and the trial court did 

not err in denying his motion to dismiss. Defendant’s 

conviction for first degree murder on the basis of felony murder 

is left undisturbed.

II. Defendant’s Conviction for First Degree Murder on the Basis 

of Premeditation and Deliberation

Next, with regard to defendant’s conviction for first 

degree murder on the basis of premeditation and deliberation, 

defendant argues that the trial court committed plain error in 

failing to instruct the jury on second degree murder. In the 

alternative, defendant contends that his trial counsel was 

constitutionally ineffective in failing to request this 

instruction. Even assuming arguendo that the trial court erred 

in refusing to instruct on second degree murder, this error 

would not affect the jury’s verdict finding defendant guilty of 

first degree murder based on the felony murder rule. Therefore, 

defendant is unable to meet his burden of demonstrating plain 

error. 

Because defendant failed to request an instruction on 

second degree murder, we review for plain error. State v. 

Carter, 366 N.C. 496, 497, 739 S.E.2d 548, 549 (2013); State v. 
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Boyett, __ N.C. App. __, __, 735 S.E.2d 371, 374 (2012). Our 

Supreme Court has recently clarified the plain error standard of 

review:

For error to constitute plain error, a 

defendant must demonstrate that a 

fundamental error occurred at trial. To 

show that an error was fundamental, a 

defendant must establish prejudice—that, 

after examination of the entire record, the 

error had a probable impact on the jury’s 

finding that the defendant was guilty.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal citations and quotation marks omitted).

Here, the jury was presented with two theories of first 

degree murder: (1) premeditation and deliberation; and (2) 

felony murder. The jury convicted defendant of first degree

murder under both theories. Assuming arguendo that the trial 

court erred by failing to instruct on second degree murder, 

defendant is unable to establish that the error would have a 

probable impact on the jury finding defendant guilty for first 

degree murder based on felony murder. In other words, that 

supposed error would only affect defendant’s conviction for 

first degree murder based on premeditation and deliberation. 

Since we have found no error with regard to defendant’s 

conviction for first degree murder based on felony murder, as 

discussed above, defendant is unable to establish plain error. 
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With regards to defendant’s claim for ineffective 

assistance of counsel based on his counsel’s failure to request 

an instruction on second degree murder, we conclude it is 

without merit. To establish that defendant’s counsel fell below 

an objective standard of reasonableness, the defendant must 

satisfy the two-prong test created by the United States Supreme 

Court in Washington v. Strickland, 466 U.S. 668, 280 L. Ed. 2d 

674 (1984), and adopted by our Supreme Court in State v. 

Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985):

In order to meet this burden [the] defendant 

must satisfy a two part test. First, the 

defendant must show that counsel’s 

performance was deficient. This requires 

showing that counsel made errors so serious 

that counsel was not functioning as the 

“counsel” guaranteed the defendant by the 

Sixth Amendment. Second, the defendant must 

show that the deficient performance 

prejudiced the defense. This requires 

showing that counsel’s error were so serious 

as to deprive the defendant of a fair trial, 

a trial whose result is reliable.

(quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693). 

Since defendant’s conviction for felony murder was free from 

error and that judgment is not affected by the trial court’s 

alleged error in refusing to instruct on second degree murder, 

defendant is unable to establish the second prong of the 
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Strickland test: that he was prejudiced as a result. 

Consequently, defendant’s argument is overruled.

Conclusion

In summary, we find no error in defendant’s conviction for 

first degree murder based on felony murder pursuant to Squires

and that conviction remains undisturbed. In addition, even 

assuming arguendo that the trial court erred in refusing to 

instruct on second degree murder, this error would have no 

impact on the jury’s finding defendant guilty of first degree 

murder based on the felony murder rule. Thus, defendant is 

unable to establish plain error. Finally, with regard to 

defendant’s ineffective assistance of counsel claim, defendant 

is unable to establish prejudice, the second prong under 

Strickland. Therefore, defendant’s claim has no merit.

CONVICTION OF FIRST DEGREE MURDER ON BASIS OF FELONY 

MURDER: NO ERROR. 

CONVICTION FOR FIRST DEGREE MURDER ON THE BASIS OF 

PREMEDITATION AND DELIBERATION: NO PLAIN ERROR.

Judges CALABRIA and ROBERT N. HUNTER, JR. concur.

Report per Rule 30(e).