Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 September 2007
STATE OF NORTH CAROLINA
v. Randolph County
No. 05 CRS 56809
CHRISTOPHER BRYAN MATTHEWS
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.
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
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
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
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
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.
, 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.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***