Converted WP file 070312-1

Appeal by defendant from judgment entered 19 October 2006 by Judge A. Moses Massey in Superior Court, Randolph County. Heard in the Court of Appeals 27 August 2007.

Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.

Glenn Gerding, for defendant-appellant.

WYNN, Judge.

    Defendant Christopher Bryan Matthews appeals from his conviction for first-degree sexual offense of a child under the age of thirteen. After a careful review of Defendant's appeal, we find no error.
    At trial, the State offered evidence showing that on 20 September 2005, Defendant was living with a woman and her three children, two boys and a seven-year-old girl. The mother went to a doctor appointment that afternoon, leaving Defendant at home watching the youngest child when the two older children, including the seven-year-old girl, arrived home from school around three p.m. While the boys went outside to play, the seven-year-old girl didher homework on the couch next to Defendant while he watched television. The seven-year-old girl then went into her bedroom, where Defendant followed her and picked her up. He then inserted his finger into her vagina for four to five minutes; the seven- year-old girl asked him to stop twice, and she tried to push him away with her feet. Defendant finally put her down and went back to the living room. The seven-year-old girl changed her clothes because her underwear was wet with blood.
    When the mother returned home around 3:45 p.m, she saw the bloody underwear in the laundry basket and called to make an appointment with a doctor for the seven-year-old girl at 6:00 p.m. Upon examination, the doctor suspected sexual abuse and contacted the police department. The seven-year-old girl told her mother and then the doctor that Defendant had hurt her and that he had put his finger into her “potty hole.” She repeated her story to police officers at the police station and later to a forensic interviewer and another doctor. Physical examination of the seven-year-old girl's vagina showed evidence of forceful penetrating injury consistent with sexual abuse. Police officers took a statement from Defendant that he had been wrestling with the children and that his hand may have slipped when he picked up the seven-year-old girl to “body slam” her onto the bed.
    Defendant testified in his own defense and denied any inappropriate touching of the seven-year-old girl, including penetrating her vagina with his finger. He stated he was wrestling with her and her younger brother on that day and they enjoyed it,asking him to “body slam” them on the bed. He admitted being the only adult home during that time period but denied telling the police that his hand may have slipped while wrestling with her.
    Following the jury's guilty verdict, the trial court imposed a sentence in the presumptive range of 264 to 326 months' imprisonment and entered judgment on 19 October 2006. Defendant now appeals, arguing that (I) the trial court erred by denying his motion to dismiss, and (II) the trial court committed plain error by failing to give an instruction on “accident” or “accidental touching.”

    First, Defendant asserts that the trial court erred in denying his motion to dismiss because the State failed to present sufficient evidence of Defendant's intent to commit the crime as well as Defendant's age. We disagree.
    In determining whether to grant a motion to dismiss for insufficiency of the evidence, “the trial court must decide 'whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.'” State v. Davis, 130 N.C. App. 675, 678, 505 S.E.2d 138, 141 (1998) (quoting State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990)). Substantial evidence includes both direct and circumstantial evidence, and is “evidence from which a rational finder of fact could find the fact to be proved beyond a reasonable doubt.” Id. When considering such a motion, all evidence is viewed in the light most favorable to theState, including all reasonable inferences which may be drawn therefrom. Id. at 679, 505 S.E.2d at 141. “'Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.'” Id. (quoting State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996)).
    First-degree sexual offense involves a “person engag[ing] in a sexual act: (1) [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 (2005). A “sexual act” includes “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). Intent to commit first-degree sexual offense is inferred from the commission of the act. State v. Boone, 307 N.C. 198, 209, 297 S.E.2d 585, 592 (1982), overruled on other grounds by State v. Richmond, 347 N.C. 412, 430, 495 S.E.2d 677, 687 (1998).
    Here, the State offered testimony from the seven-year-old girl regarding Defendant's digital penetration of her vagina, as well as testimony regarding physical injury to the seven-year-old girl's vagina and expert opinion that the injury was caused by forceful penetration of an object. Moreover, Defendant admitted that he was the only adult in the house at the time of the incident. This testimony all supports the element of Defendant's commission of a sexual act with the seven-year-old girl. Since intent is inferred from the commission of the act, no further evidence of Defendant'sintent was necessary, despite Defendant's contention to the contrary.
    Furthermore, enough circumstantial evidence exists to support the element that Defendant was at least twelve years old, as required by N.C. Gen. Stat. § 14-27.4(1). Defendant testified as to his various jobs driving a pallet truck at a furniture outlet and installing air conditioning units. The jury could also infer a minimum age from Defendant's stated intent to marry the mother and raise their baby together, as well as from the physical strength Defendant possessed in picking up the children, lifting them over his head, and “body slamming” them onto a bed.
    This evidence, when considered in the light most favorable to the State, was sufficient to support each element of the offense. Accordingly, we find no error in the trial court's denial of Defendant's motion to dismiss. This assignment of error is overruled.

    Next, Defendant contends the trial court committed plain error by failing to instruct the jury on “accident” or “accidental touching,” as allegedly required by the evidence. We disagree.
    Because Defendant did not request such an instruction at trial, this issue may only be reviewed for plain error. N.C. R. App. P. 10(b)(2) and 10(c)(4). Plain error is error “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Parker, 350 N.C. 411, 427,516 S.E.2d 106, 118 (1999) (quotation and citations omitted), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000). Plain error “does not simply mean obvious or apparent error[,]” but error so fundamental, basic, and prejudicial that justice cannot be done. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).
    We note that Defendant is attempting to argue a theory on appeal that he expressly denied at trial, namely, that he inadvertently penetrated the seven-year-old girl's vagina. Defendant testified that he never touched the seven-year-old girl inappropriately and that he did not penetrate her vagina. Defendant argues now, however, that the police officer's testimony that Defendant stated that his hand may have slipped when playing with the seven-year-old girl raises a “substantial possibility” that Defendant accidentally penetrated her vagina and caused her injury. We reject Defendant's argument. The evidence of forceful penetration and the extent of the victim's injury is enough to rebut any inference that the penetration was accidental. Moreover, we conclude that an instruction on “accident,” in the face of the overwhelming evidence of Defendant's guilt, would have been unlikely to cause the jury to reach a different verdict. Parker, 350 N.C. at 427, 516 S.E.2d at 118. Accordingly, this assignment of error is overruled.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***