The majority holds the trial court's instructions, which allowed the jury to infer *316lack of consent to penetration if the jury found victim was sleeping, were prejudicial and therefore entitled defendant to a new trial. Because I believe the trial court did exactly as the law requires in instructing the jury, and defendant received a fair trial free from any error, prejudicial or otherwise, I dissent from the majority opinion.
Defendant was convicted by a jury of second degree rape.
A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
(1) by force and against the will of the other person; or
(2) Who is mentally disabled, mentally incapacitated, or physically helpless.
N.C. Gen.Stat. § 14-27.3 (2003).
The majority states the trial court's instruction to the jury on second degree rape created a mandatory presumption and thereby impermissibly shifted the burden of proof to defendant. In other words, based on State v. White, the jury instruction given "prejudge[d] the existence of an elemental issue or actually shift[ed] to defendant the burden to disprove the existence of an elemental fact[.]" See State v. White, 300 N.C. 494, 507, 268 S.E.2d 481, 489 (1980) (detailed discussion of difference between mandatory and permissive presumptions). The elemental issue in question is whether the offense was committed by the use of force and without the consent of the victim. Jury instructions are generally controlling in deciding what type of inference or presumption might be involved in a case. Id.
The recommended Pattern Jury Instruction for Second Degree Rape, most of which the trial court gave verbatim, reads as follows:
N.C.P.I. - Crim. 207.20 states:
The defendant has been charged with second degree rape. For you to find the defendant guilty of this offense, the state must prove three ... things beyond a reasonable doubt: First, that the defendant engaged in vaginal intercourse with the victim. Vaginal intercourse is penetration, however slight, of the female sex organ by the male sex organ. (The actual emission of semen is not necessary.) Second, that the defendant used or threatened to use force sufficient to overcome any resistance the victim might make. (The force necessary to constitute rape need not be actual physical force. Fear or coercion may take the place of physical force.) And Third, that the victim did not consent and it was against her will. (Consent induced by fear is not consent in law.) If you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant engaged in vaginal intercourse with the victim and that he did so by force or threat of force and that this was sufficient to overcome any resistance which the victim might make, and that the victim did not consent and it was against her will ... it would be your duty to return a verdict of guilty. If you do not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.
N.C.P.I. - Crim. 207.20 (2003) (emphasis added).
The one exception to the pattern jury instructions occurred when the trial court substituted the phrase "Consent induced by fear is not consent in law" with the following language: "Force and lack of consent are implied in law if at the time of the vaginal intercourse the victim is sleeping or similarly incapacitated." Here the trial court based its instruction in part, on prior case law which held that force and lack of consent are implied in law upon the showing of sexual intercourse with a sleeping person. See State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987). Moorman is clearly applicable and on point. The majority, however, attempts to distinguish Moorman from this case by stating that "in Moorman, the appellate courts were reviewing the indictment and the evidence presented, not whether the jury was properly instructed on the law regarding second degree rape." Notwithstanding, Moorman states:
In the case of a sleeping, or similarly incapacitated victim, it makes no difference whether the indictment alleges that the vaginal intercourse was by force and against the victim's will or whether it alleges *317merely the vaginal intercourse with an incapacitated victim. In such a case sexual intercourse with the victim is ipso facto rape because the force and lack of consent are implied in law.
Moorman at 392, 358 S.E.2d at 506.
In Moorman, the court was merely restating what was firmly rooted in the common law from which our statutes on sexual offenses developed. The phrase, "by force and against the will of another person," found in our state's rape and sexual offense statutes "means the same as it did at common law when it was used to describe some of the elements of rape." State v. Locklear, 304 N.C. 534, 539, 284 S.E.2d 500, 503 (1981); see N.C.G.S. §§ 14-27.2 to -27.5 (1988). Force and lack of consent for the crime of rape were implied in law at common law if it was shown that the intercourse was with a person who was sleeping or unconscious or otherwise incapacitated. Moorman at 392, 358 S.E.2d at 506; See also State v. Dillard, 90 N.C.App. 318, 322, 368 S.E.2d 442, 445 (1988) (force and lack of consent implied in law when sexual offense perpetrated upon a victim who is sleeping or similarly incapacitated); State v. Brown, 332 N.C. 262, 420 S.E.2d 147 (1992). This developed, not as a means to determine how to charge in a rape indictment, but to state as a matter of substantive law, that a sleeping victim does not consent. Therefore, the trial court's instructions were based on the law as it has developed in our jurisprudence.
As to the element or elemental issue of force and lack of consent, the jurors heard evidence from the victim that she was asleep, then woke up while defendant was sexually penetrating her and that she never gave him permission to do so. They also heard evidence from the defendant that the victim was awake and that she consented to the penetration. The jury could have believed the victim's testimony and found she was sleeping and therefore could not consent, and that upon awakening she struggled with defendant and still did not give consent. On the other hand, the jury could have believed the defendant's testimony that the victim was not asleep, did not resist and did indeed consent to the sexual intercourse. The trial court's instruction that "force and lack of consent are implied in law if at the time of sexual intercourse the victim is sleeping ..." is no more impermissible and prejudicial than the portion of the Pattern Jury Instruction - "consent induced by fear is not consent in law" - that was substituted. Neither of these instructions impermissibly shift the burden to defendant. Under either version, the jury would have to make credibility findings (e.g. was the victim asleep; was the victim afraid) in order to determine whether there was force and lack of consent. Defendant was not required to come forth with any more evidence and therefore I would find there was no constitutional violation based on the court's instructions. If the trial court's instruction on force and lack of consent which was given pursuant to Moorman can be considered a presumption, it should be considered permissive, not mandatory.
Moreover, on appeal, it is defendant's burden to show, under the reasonable likelihood test of Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316, 329 (1990), more than a possibility that the jury applied the instruction in an unconstitutional manner. State v. Jennings, 333 N.C. 579, 621, 430 S.E.2d 188, 209 (1993). In other words, the harmless error test applies to jury instructions that violate Sandstrom v. Montana [442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) (holding mandatory presumptions violate due process because the burden of persuasion is shifted to defendant)]. Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); See also Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684 (1986) (constitutional errors may be harmless "in terms of their effect on the factfinding process at trial") (emphasis added); See also Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 711 overturned on other grounds, r'hrg denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967) (error is harmless if, beyond a reasonable doubt, it "did not contribute to the verdict obtained") (emphasis added).
In summary, because I believe the trial court properly instructed the jury according to law, and without violating any of defendant's *318constitutional rights, I would find defendant received a fair trial free from error.