Appeal by defendant from judgment entered 17 March 2005 by
Judge Edwin G. Wilson, Jr. in Randolph County Superior Court.
Heard in the Court of Appeals 6 June 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Anita LeVeaux, for the State.
Brian Michael Aus for defendant-appellant.
Defendant Jose Oscar Gonzalez-Muro appeals from convictions of
first degree statutory sexual offense and taking indecent liberties
with a child. On appeal, defendant principally argues that the
trial court erred by denying his motion to dismiss the first degree
statutory sexual offense charge for insufficient evidence, because,
according to defendant, the State presented no evidence that he
committed a "sexual act" upon the victim. We hold that the
evidence, when viewed in the light most favorable to the State, as
required by our standard of review, is sufficient to permit a jury
to find that defendant penetrated the child digitally, and the
trial court, therefore, properly denied the motion to dismiss. We
find defendant's remaining arguments likewise to be without meritand, consequently, hold that defendant received a trial free of
The State's evidence at trial tended to show the following
facts. On 13 June 2002, "Matthew" and his wife, "Barbara," took
their four-year-old daughter, "Tina", to the home of her
babysitter, Vereanda Flores, as they had been doing regularly for
approximately seven months.
(See footnote 1)
When Barbara picked up Tina several
hours later, she was crying and complaining of pain in her vaginal
Matthew suspected Tina was "dirty," and Barbara took Tina into
the bathroom to give her a bath. There, Tina told Barbara that she
had to urinate, but "wouldn't do it because she said it hurt."
Tina reported that, while she was at Mrs. Flores' home, defendant,
who was Mrs. Flores' husband, had taken Tina into a room, pulled
her pants down, and "got her . . . part with his hands." Tina was
pointing to her vaginal area while describing where defendant had
After Barbara told Matthew what Tina had said, they returned
to Mrs. Flores' house to confront her. Mrs. Flores called
defendant, who had since gone to work, and he returned home.
Defendant denied the accusations, but, according to Matthew, acted
"really nervous" and not "angry." Matthew and Barbara went back home and took Tina, who was
still crying and saying that her vaginal area hurt, to Randolph
County Hospital. While there, Tina was examined by Dr. Michael
Anthony Polito, whose examination included an assessment of Tina's
genital area to find "any sign of penetration or injury." Dr.
Polito found "a very small skin tear at the inferior border of the
vagina, where the mucosa or mucosal part of the vagina meets the
skin, very small, a couple of millimeters." Dr. Polito believed
that the injury likely occurred within the past 24 hours and was
consistent with Tina's complaints of sexual abuse.
Detective James Rex Briles, Jr. of the Asheboro City Police
Department interviewed Tina. Upon the detective's arrival at the
hospital, he noticed that "[i]t was obvious . . . that [Tina] had
been crying." After interviewing Tina, Detective Briles spoke with
defendant. Defendant said that he had been at home when Tina was
there and had been watching television while Tina and several other
children were sleeping on the floor. Defendant denied any
wrongdoing and told Detective Briles he had never been in a bedroom
alone with Tina. His wife, however, told Detective Briles that she
had observed defendant exiting his bedroom with Tina.
On 2 December 2002, defendant was indicted for first degree
statutory sexual offense with a child and taking indecent liberties
with a child. On 17 March 2005, a jury convicted him of both
charges. The trial court consolidated both charges for judgment
and entered a sentence in the mitigated range of 144 to 182 months
imprisonment. Defendant timely appealed to this Court.
Defendant first contends that the trial court erred by denying
his motion to dismiss the charge of first degree statutory sexual
offense. A motion to dismiss for insufficiency of the evidence
should be denied if there is substantial evidence: (1) of each
essential element of the offense charged and (2) of defendant's
being the perpetrator of the offense. State v. Scott
, 356 N.C.
591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is that
amount of relevant evidence necessary to persuade a rational juror
to accept a conclusion. Id.
at 597, 573 S.E.2d at 869. On review
of a denial of a motion to dismiss, this Court must view the
evidence in the light most favorable to the State, giving the State
the benefit of all reasonable inferences. Id.
at 596, 573 S.E.2d
at 869. Contradictions and discrepancies do not warrant dismissal
of the case, but, rather, are for the jury to resolve. Id.
A defendant is guilty of first degree statutory sexual offense
if the defendant engages in a sexual act "[w]ith a victim who is a
child under the age of 13 years and the defendant is at least 12
years old and is at least four years older than the victim." N.C.
Gen. Stat. § 14-27.4(a)(1) (2005); see also State v. Ludlum
N.C. 666, 667, 281 S.E.2d 159, 160 (1981) (conviction for first
degree statutory sexual offense requires the State to prove: "(1)
the defendant engaged in a 'sexual act,' (2) the victim was at the
time of the act twelve years old or less, and (3) the defendant was
at that time four or more years older than the victim."). Onappeal, defendant challenges only the sufficiency of the evidence
to show that he performed a "sexual act."
A "sexual act" is defined as: "[C]unnilingus, fellatio,
analingus, or anal intercourse, but does not include vaginal
intercourse. Sexual act also means the penetration, however
slight, by any object into the genital or anal opening of another
person's body . . . ." N.C. Gen. Stat. § 14-27.1(4) (2005). The
phrase "'penetration . . . by any object'" includes penetration by
a finger. State v. Lucas
, 302 N.C. 342, 345-46, 275 S.E.2d 433,
435-36 (1981) (quoting N.C. Gen. Stat. § 14-27.1(4)). Defendant
argues that the State presented no evidence that he actually
penetrated Tina's vaginal opening.
Our Supreme Court has held that evidence a defendant entered
the labia is sufficient to prove the element of penetration for a
charge of rape. State v. Johnson
, 317 N.C. 417, 434, 347 S.E.2d 7,
17 (1986), superseded by statute on other grounds as stated by
State v. Moore
, 335 N.C. 567, 440 S.E.2d 797, cert. denied
U.S. 898, 130 L. Ed. 2d 174, 115 S. Ct. 253 (1994). This Court
adopted this standard for showing penetration for statutory sexual
offense cases in State v. Bellamy
, 172 N.C. App. 649, 658, 617
S.E.2d 81, 88 (2005), appeal dismissed and disc. review denied
N.C. 290, 628 S.E.2d 384 (2006), where we concluded that when the
victim testified that she had "felt the barrel of [defendant's] gun
on the inside
of her labia," the State had shown sufficient
evidence to support the penetration element of first degree
statutory sexual offense. Id.
at 657, 617 S.E.2d at 88. At trial, Tina, then seven years old and testifying through a
Spanish-speaking interpreter, was asked, "How much of [defendant's]
hand went to your private place?" Tina responded that defendant
put his hand "[u]p in here" while gesturing towards her genital
area. Moreover, Dr. Polito testified that the small skin tear
injury Tina suffered was located in "the interior aspect
vagina." (Emphasis added.) The doctor went on to explain in
greater detail that the torn tissue was inside the labia majora.
This evidence, which we are required to view in the light most
favorable to the State, Scott
, 356 N.C. at 596, 573 S.E.2d at 869,
is sufficient under Bellamy
to satisfy the State's burden of
showing the penetration element of first degree statutory sexual
offense. This assignment of error is, therefore, overruled.
Defendant next argues that the State's indictment charging him
with first degree statutory sexual offense was fatally defective.
First degree statutory sexual offense may properly be charged using
a short-form indictment. See State v. Wallace
, 351 N.C. 481, 505,
528 S.E.2d 326, 342, cert. denied
, 531 U.S. 1018, 148 L. Ed. 2d
498, 121 S. Ct. 581 (2000). When the victim is under 13 years old,
such an indictment need only "allege that the defendant unlawfully,
willfully, and feloniously did engage in a sex offense with a child
under the age of 13 years, nam[e] the child, and conclud[e] as
aforesaid." N.C. Gen. Stat. § 15-144.2(b) (2005).
Here, the opening caption on defendant's indictment reads
"Indictment First Degree Statutory Sexual Offense" and denotes itis an "Offense in Violation of G.S. 14-27.4(a)(1)." The body of
the indictment goes on to state that:
The jurors for the State upon their oath
present that on or about the date of offense
shown and in the county named above the
defendant named above unlawfully, willfully
and feloniously did engage in a sex offense
with [Tina], a child under the age of 13
By tracking the language of N.C. Gen. Stat. § 15-144.2(b) and
identifying the victim by name, the indictment "contains all the
information necessary to charge defendant" with first degree
statutory sexual offense by short-form indictment and, therefore,
is legally sufficient. State v. Dillard
, 90 N.C. App. 318, 320,
368 S.E.2d 442, 444 (1988).
Defendant nevertheless argues that his indictment was fatally
defective because it did not include the phrase "by force and
against the will of [the] victim," citing N.C. Gen. Stat. §
15-144.2(b). While the language sought by defendant constitutes an
element of N.C. Gen. Stat. § 14-27.4(a)(2) (providing that first
degree sexual offense involves a sexual act "[w]ith another person
by force and against the will of the other person"), it is not an
element of the charge at issue here: a sexual act "[w]ith a victim
who is a child under the age of 13 years . . . ." N.C. Gen. Stat.
§ 14-27.4(a)(1). Since proof that defendant committed the offense
"by force and against the will of [the] victim" was not required
for conviction, the indictment was not required to include that
N.C. Gen. Stat. § 15-155 (2005) ("No judgment upon
any indictment for felony or misdemeanor . . . shall be stayed orreversed for the want of the averment of any matter unnecessary to
. . . ." (emphasis added)). Indeed, in State v. Daniels
164 N.C. App. 558, 565, 596 S.E.2d 256, 260-61, disc. review
, 359 N.C. 71, 604 S.E.2d 918 (2004), this Court held that a
short-form indictment using nearly identical language to the
indictment at issue in this case was sufficient. This assignment
of error is, therefore, overruled.
Finally, defendant contends that the trial court erred when it
allowed Dr. Polito to testify that Tina's injuries were consistent
with child sexual abuse. In State v. Stancil
, 355 N.C. 266, 559
S.E.2d 788 (2002) (per curiam), our Supreme Court concluded that
"the trial court should not admit expert opinion that sexual abuse
has in fact
occurred . . . absent physical evidence supporting a
diagnosis of sexual abuse, [as] such testimony is an impermissible
opinion regarding the victim's credibility." Id.
at 266-67, 559
S.E.2d at 789. In so holding, our Supreme Court modified and
affirmed the prior conclusion of this Court that the defendant had
failed to establish plain error when the State's expert testified
that, despite an absence of any physical abnormalities, "the child
'was sexually assaulted and [that there was] maltreatment,
emotionally, physically and sexually.'" State v. Stancil
, 146 N.C.
App. 234, 238, 552 S.E.2d 212, 214 (2001) (alteration in original),
modified and aff'd per curiam
, 355 N.C. 266, 559 S.E.2d 788 (2002).
Here, Dr. Polito testified that Tina's injury was "consistent
with [her] complaint" that she had been sexually assaulted. Whenasked to explain, Dr. Polito testified: "Well, the child is stating
that a finger was inserted in that area, that would be force to
that area, and there is evidence of some type of force or injury
(Emphasis added.) Thus, unlike in Stancil
, where there was no
physical evidence supporting a diagnosis of sexual abuse, Dr.
Polito was testifying that the physical evidence present was
consistent with trauma such as described by the child. Stancil
does not prohibit such testimony, and, accordingly, this assignment
of error is overruled.
Judges WYNN and STEPHENS concur.
Report per Rule 30(e).