STEELMAN

Appeal by defendant from judgment entered 5 January 2012 by Judge Russell J. Lanier, Jr., in Wayne County Superior Court. Heard in the Court of Appeals 27 February 2013. Attorney General Roy Cooper by Assistant Attorney General John F. Oates, Jr., for the State. Glenn Gerding for defendant-appellant.
STEELMAN, Judge.

Where there were contradictions between the testimony of Wider and that of his treating physician as to the nature and extent of his injuries, the trial court properly denied defendant's motion to dismiss the charges of second-degree sexual offense because there was substantial evidence of each element of the offense. The trial court was not required to find a mitigating factor when it sentenced defendant from the presumptive range.

I. Factual and Procedural Background

On the evening of 25 March 2010, Tyrone Lamonte Scriven (defendant) invited Rashawn Wider (Wider) to his rooming house. At some point, defendant accused Wider of stealing defendant's glasses and money from his wallet. Defendant trapped Wider in the bathroom where he assaulted Wider, by striking and scratching him. Wider testified that defendant inserted the end of a mop into his rectum and also repeatedly inserted the wooden handle of a plunger into his rectum. Wider was unable to leave the bathroom because he was afraid of defendant. The next morning, Wider left the rooming house and called police. The responding officer called for an ambulance, which took Wider to a hospital emergency room for examination. The attending physician observed scratches on Wider's neck, chest, and arms, and removed a wad of toilet paper from Wider's rectum. The doctor found no evidence of internal injuries.

Defendant was indicted for five counts of second-degree sexual offense. At the close of the State's evidence, the trial court dismissed two of the counts. Subsequently, the jury found defendant guilty of two counts of second-degree sexual offense, with the plunger and with the toilet paper. The jury found defendant not guilty of second-degree sexual offense with the mop. The trial court found defendant to be a Level I offender and sentenced defendant to two consecutive active terms of imprisonment of 58 to 79 months.

Defendant appeals.

II. Motion to Dismiss

In his first argument on appeal, defendant contends that the trial court erred in denying his motion to dismiss the charges of second-degree sexual offense. We disagree.

A. Standard of Review

“This Court reviews the trial court's denial of a motion to dismiss de novo. ” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). The trial court must determine whether there is substantial evidence of each essential element of the offense charged, and that the defendant is the perpetrator of the offense. Id. We view the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom. State v. Penland, 343 N.C. 634, 648, 472 S.E.2d 734, 741 (1996). “Contradictions and discrepancies are for the jury to resolve.” Id.

B. Analysis

“The elements of second-degree sexual offense in this case are (1) sexual act, (2) against the will and without the consent of another person, and (3) using force sufficient to overcome any resistance of the other person.” State v. Thacker, 196 N.C.App. 512, 513, 675 S.E.2d 670, 671 (2009); N.C. Gen.Stat. § 14–27.5(a) (2011). “The requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion.” State v. Etheridge, 319 N.C. 34, 45, 352 S.E.2d 673, 680 (1987).

Defendant does not specifically contend that the State failed to present sufficient evidence as to any specific element of second-degree sexual offense, but states that “the indisputable physical evidence conflicted with [Wider's] accusations involving the plunger,” and “his accusations were inherently impossible.” In support of his argument, defendant cites State v. Miller for the proposition that “evidence which is inherently impossible or in conflict with indisputable physical facts or laws of nature is not sufficient to take the case to the jury.” 270 N.C. 726, 731, 154 S .E.2d 902, 905 (1967) (quoting Jones v. Schaffer, 252 N.C. 368, 378, 114 S.E.2d 105, 112 (1960)). In Miller, the State's evidence consisted of an eyewitness's identification of the defendant as the perpetrator. Id. at 732,154 S.E.2d at 905. Because the eyewitness was at least 286 feet from the perpetrator, only saw the perpetrator's face once, and was identifying a stranger rather than someone he already knew, our Supreme Court held that the testimony was “inherently incredible” and the defendant's motion for judgment of nonsuit should have been granted. Id. at 731–32, 154 S.E.2d at 905. “Without the testimony of [the eyewitness], there would be a complete failure of the State's evidence to connect the defendant ... with the offense with which he is charged.” Id. at 732, 154 S.E.2d at 905. The facts of the instant case are distinguishable.

In the instant case, in addition to Wider's testimony that defendant forced the plunger and toilet paper into his rectum, the State presented evidence that included: (1) testimony of the attending physician that he removed the toilet paper from the Wider's rectum; (2) Wider's testimony that defendant punched and scratched his body, and that he was afraid of defendant; (3) testimony of the attending physician confirming scratches on Wider's body; (4) the defendant's statements to Wider's mother than she would see her son again, but he would not be the same; and (5) defendant's statements to police that he had to teach someone a lesson, meaning “criminal justice ... jury, judge, and executioner.” The physical evidence presented by the State included: photographs of the scratches on Wider's body; bloodstains on the floor of the bathroom; a five-inch long bloodstain on the end of the plunger handle; and DNA taken from the end of the plunger handle that matched that of Wider. Defendant had an opportunity to cross-examine Wider as to any inconsistencies he perceived existed between Wider's testimony and that of the attending physician. While there may have been inconsistencies between the testimony of Wider and that of the attending physician, any perceived or actual inconsistencies are expressly left for the jury to decide. Penland, 343 N.C. at 648, 472 S.E.2d at 741. We further note that physical injury is not an element of the crime of second-degree sexual offense and therefore, evidence of physical injury is not required to survive a motion to dismiss. Rather the evidence of injury would be relevant to whether the sexual act occurred and whether force was used in the occurrence of the sexual act.

The trial court properly denied defendant's motion to dismiss because the State presented substantial evidence of each element of the charges of second-degree sexual offense submitted to the jury.

This argument is without merit.

III. Sentencing

In his second argument, defendant contends that the trial court erred in failing to find as a mitigating factor, under N.C. Gen.Stat. § 15A–1340.16(e)(14), that defendant was honorably discharged from the Armed Forces of the United States. We disagree.

The trial court is required to make “findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range of sentences ....“ N.C. Gen.Stat. § 15A–1340.16(c) (2011) (emphasis added). When the trial court enters a sentence within the presumptive range, the court does not err by declining to find defendant's proposed mitigating factors, regardless of whether or not the evidence of their existence was credible and uncontradicted. E.g., State v. Hagans, 177 N.C.App. 17, 31, 628 S.E.2d 776, 785–86 (2006) (“Defendant's notion that the court is obligated to formally find or act on proposed mitigating factors when a presumptive sentence is entered has been repeatedly rejected.”).

In the instant case, defendant received a sentence from the presumptive range. The trial court considered evidence of both aggravating and mitigating factors and elected to sentence defendant from the presumptive range. Defendant's sentence was entered pursuant to N.C. Gen.Stat. § 15A–1340.16(c) and is without error.

This argument is without merit.

NO ERROR. Judges GEER and HUNTER, JR., ROBERT N. concur.

Report per Rule 30(e).