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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1217 NORTH CAROLINA COURT OF APPEALS Filed: 19 September 2006 STATE OF NORTH CAROLINA v. JOSE OSCAR GONZALEZ-MURO, Defendant. Randolph County Nos. 02 CRS 11019 02 CRS 53703

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. GEER, Judge. 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

-2trial court, therefore, properly denied the motion to dismiss. We

find defendant's remaining arguments likewise to be without merit and, consequently, hold that defendant received a trial free of prejudicial error. Facts The State's evidence at trial tended to show the following facts. their On 13 June 2002, "Matthew" and his wife, "Barbara," took four-year-old daughter, "Tina", to the home of her

babysitter, Vereanda Flores, as they had been doing regularly for approximately seven months.1 When Barbara picked up Tina several

hours later, she was crying and complaining of pain in her vaginal area. 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 "got[ten] her." 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.

The pseudonyms Matthew, Barbara, and Tina, will be used throughout the opinion to protect the child's privacy.

1

-3Defendant 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. charges. On 17 March 2005, a jury convicted him of both

The trial court consolidated both charges for judgment

-4and entered a sentence in the mitigated range of 144 to 182 months imprisonment. Defendant timely appealed to this Court.

I 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. at 869. Id. at 596, 573 S.E.2d

Contradictions and discrepancies do not warrant dismissal Id.

of the case, but, rather, are for the jury to resolve.

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.

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