{ "id": 3806383, "name": "STATE OF NORTH CAROLINA v. SAMUEL KRIS HUNT, Defendant", "name_abbreviation": "State v. Hunt", "decision_date": "2011-05-03", "docket_number": "No. COA10-666", "first_page": "452", "last_page": "469", "citations": [ { "type": "official", "cite": "211 N.C. App. 452" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "616 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633593 ], "weight": 8, "year": 2005, "pin_cites": [ { "page": "577-78" }, { "page": "579-80" }, { "page": "581" }, { "page": "581" }, { "page": "581" }, { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0576-01" ] }, { "cite": "649 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639264, 12639263 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/649/0642-02", "/se2d/649/0642-01" ] }, { "cite": "631 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636084 ], "year": 2006, "pin_cites": [ { "page": "196-97", "parenthetical": "the Court considered contrasting expert witness testimony regarding the extent of the defendant's mental retardation in determining whether defendant knowingly, intelligently, and voluntarily waived his Miranda rights" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0188-01" ] }, { "cite": "671 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642556 ], "year": 2009, "pin_cites": [ { "page": "59", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/671/0053-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "539 U.S. 558", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8898517 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "574-75, 578" }, { "page": "523, 525" } ], "opinion_index": 0, "case_paths": [ "/us/539/0558-01" ] }, { "cite": "63 L. Ed. 2d 782", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "445 U.S. 947", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777700, 1777872, 1777300, 1777430, 1777757, 1777375 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/445/0947-04", "/us/445/0947-06", "/us/445/0947-05", "/us/445/0947-01", "/us/445/0947-03", "/us/445/0947-02" ] }, { "cite": "259 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571984, 8571857, 8571890, 8571954, 8571928 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0303-05", "/nc/298/0303-01", "/nc/298/0303-02", "/nc/298/0303-04", "/nc/298/0303-03" ] }, { "cite": "252 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "844-45" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 385", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550682 ], "year": 1979, "pin_cites": [ { "page": "387-88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0385-01" ] }, { "cite": "145 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "902" } ], "opinion_index": 0 }, { "cite": "266 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560324 ], "year": 1966, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0295-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-177", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "year": 2007, "pin_cites": [ { "page": "779" }, { "page": "779" } ], "opinion_index": 0 }, { "cite": "172 N.C. App. 772", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321446 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "773" }, { "page": "776" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0772-01" ] }, { "cite": "397 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "241-42", "parenthetical": "this Court relied in part on expert testimony that the plaintiff \"had [a] considerable mental handicap\" in determining that competent evidence supported the Industrial Commission's findings" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527105 ], "year": 1990, "pin_cites": [ { "page": "530-31", "parenthetical": "this Court relied in part on expert testimony that the plaintiff \"had [a] considerable mental handicap\" in determining that competent evidence supported the Industrial Commission's findings" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0527-01" ] }, { "cite": "435 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "781" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522550 ], "year": 1993, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0535-01" ] }, { "cite": "440 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "303-04" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524791 ], "year": 1994, "pin_cites": [ { "page": "811-12" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0807-01" ] }, { "cite": "498 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "348 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659930 ], "year": 1998, "pin_cites": [ { "page": "217-18" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0214-01" ] }, { "cite": "558 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "145-46", "parenthetical": "holding no error in the trial court not giving a peremptory instruction on the mitigating factor - \"The age of the defendant at the time of the crime\" - for purposes of capital punishment sentencing pursuant to N.C. Gen. Stat. \u00a7 15A-2000(f)(7" } ], "opinion_index": 0 }, { "cite": "355 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219986 ], "year": 2002, "pin_cites": [ { "page": "56", "parenthetical": "holding no error in the trial court not giving a peremptory instruction on the mitigating factor - \"The age of the defendant at the time of the crime\" - for purposes of capital punishment sentencing pursuant to N.C. Gen. Stat. \u00a7 15A-2000(f)(7" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0001-01" ] }, { "cite": "361 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735586, 3743653, 3738213, 3744874, 3740619, 3743882, 3746349, 3737044 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0434-05", "/nc/361/0434-08", "/nc/361/0434-04", "/nc/361/0434-07", "/nc/361/0434-06", "/nc/361/0434-01", "/nc/361/0434-02", "/nc/361/0434-03" ] }, { "cite": "178 N.C. App. 236", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8377141 ], "year": 2006, "pin_cites": [ { "page": "247-48", "parenthetical": "the Court considered contrasting expert witness testimony regarding the extent of the defendant's mental retardation in determining whether defendant knowingly, intelligently, and voluntarily waived his Miranda rights" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0236-01" ] }, { "cite": "354 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1987, "pin_cites": [ { "page": "538" }, { "parenthetical": "quotation marks and brackets omitted" }, { "parenthetical": "quotation marks and brackets omitted" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169578 ], "year": 1987, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0001-01" ] }, { "cite": "506 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1998, "pin_cites": [ { "page": "285" }, { "page": "288" }, { "page": "289" }, { "page": "289" }, { "page": "289" }, { "page": "290" }, { "page": "290" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 156", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11197996 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/131/0156-01" ] }, { "cite": "536 U.S. 304", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1255406 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "318" }, { "page": "348", "parenthetical": "footnotes omitted" } ], "opinion_index": 0, "case_paths": [ "/us/536/0304-01" ] }, { "cite": "196 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "774", "parenthetical": "\"Unless the contrary appears, it is presumed that the Legislature intended the words of the statute to be given the meaning which they had in ordinary speech at the time the statute was enacted.\"" } ], "opinion_index": 0 }, { "cite": "283 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559260 ], "year": 1973, "pin_cites": [ { "page": "500", "parenthetical": "\"Unless the contrary appears, it is presumed that the Legislature intended the words of the statute to be given the meaning which they had in ordinary speech at the time the statute was enacted.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0494-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 17, "year": 2007, "pin_cites": [ { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" }, { "page": "(1)" }, { "page": "(l)" }, { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "698 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2010, "pin_cites": [ { "page": "544", "parenthetical": "\"To support the charge of second-degree sexual offense, the State was required to present substantial evidence that the defendant (1) engaged in a sexual act; (2) with a person who is mentally disabled, mentally incapacitated, or physically helpless; and (3" }, { "page": "544" }, { "page": "544" }, { "page": "545" }, { "page": "546" }, { "page": "545" }, { "page": "544" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 2007, "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "148 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9564641, 9565507, 9564931, 9565413, 9565127, 9565834, 9565727, 9565933, 9565644, 9565235, 9564441, 9564731, 9564539, 9564829, 9565023 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/0890-03", "/us/531/0890-11", "/us/531/0890-06", "/us/531/0890-10", "/us/531/0890-08", "/us/531/0890-14", "/us/531/0890-13", "/us/531/0890-15", "/us/531/0890-12", "/us/531/0890-09", "/us/531/0890-01", "/us/531/0890-04", "/us/531/0890-02", "/us/531/0890-05", "/us/531/0890-07" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "455" }, { "page": "455" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "weight": 2, "pin_cites": [ { "page": "378-79" }, { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "195 N.C. App. 43", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164561 ], "year": 2009, "pin_cites": [ { "page": "50", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0043-01" ] } ], "analysis": { "cardinality": 1429, "char_count": 43106, "ocr_confidence": 0.728, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.11292897771260023 }, "sha256": "51d4e5a7e7bc5cbfef2b4fde4ad90208c78390211d5840077370f1907995f43a", "simhash": "1:8ee1d1465e89245c", "word_count": 6893 }, "last_updated": "2023-07-14T21:31:50.212435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SAMUEL KRIS HUNT, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nSamuel Kris Hunt (\u201cdefendant\u201d) appeals from a trial court\u2019s order convicting him of second-degree sexual offense and a crime against nature. Because the State failed to present sufficient evidence of the victim\u2019s mental disability, we reverse and vacate defendant\u2019s convictions.\nI. B\u00e1ckground\nOn 21 July 2008, defendant was indicted for second-degree sexual offense and a crime against nature. On 6 October 2009, defendant was tried on these charges during the Criminal Session of the Superior Court, Randolph County. The State\u2019s evidence tended to show that defendant lived with his wife and five children in Asheboro, North Carolina. On 25 May 2008, defendant\u2019s daughter Madison had her sixteenth birthday party in the park, and her friend, Clara, age seventeen, attended the party. Clara and another girl decided to spend the night at defendant\u2019s house watching movies with Madison. Defendant and his wife left the house around 9:00 p.m. and did not return until around 3:00 a.m. the next morning. Clara testified that when defendant returned, she was in the living room watching a movie with Madison and the other children in the house. Defendant first went to the bedroom but came back and sat down in the living room. Defendant then tapped Clara on the arm and motioned for her to follow him into the kitchen. Once in the kitchen, defendant began touching Clara on her breasts, vagina, and her \u201c[b]utt.\u201d Defendant then \u201ctook his penis out[,]\u201d and forced Clara\u2019s head down to his penis and she \u201c[t]ried to pull away.\u201d Clara then put defendant\u2019s penis in her mouth and when she tried to raise her head, defendant pushed her head back down to his penis a second time and it went into her mouth again. Defendant then told her \u201cDon\u2019t tell nobody. I can get in serious trouble.\u201d Defendant told Clara to go to his bedroom but instead she returned to the living room. Five minutes later Clara told the other girl spending the night with them what defendant had done. Later that morning, Clara told Madison that Madison\u2019s father had touched her and she had \u201csucked his dick.\u201d Clara left defendant\u2019s residence, returned home, and told her father what had happened. Her father took her to the police station to give a statement about what happened. Defendant was subsequently detained by police.\nThe State also presented evidence of Clara\u2019s mental disability. Clara testified that at the time of trial, she was in I2th grade, that she was getting A\u2019s and B\u2019s in school, planning to get a driver\u2019s license, and planning to attend the local community college after graduation. Clara testified that she had babysat for \u201ca lot of people\u201d in her neighborhood and paid her own bills. There was evidence presented that at the time of trial, she was living with her boyfriend and his mother.\nAdditionally, the State presented testimony from Asheboro Police Department Investigator Deborah McKenzie that she knew Clara from when she served as a school resource officer at Clara\u2019s middle school and she testified that Clara acted \u201cchild-like for her age group [.]\u201d Lisa Cheek, a social worker with the Asheboro City School System, testified that she had known Clara for more than three years. Ms. Cheek testified that there were\nthree levels at the school [for] children with exceptional disabilities, some with the higher levels, IQ levels, can be placed in the regular classrooms. Some who fall where they can\u2019t be in the regular classrooms and learn, go to the occupational skills course of study. And then those who cannot go out into the workforce or have really severe problems go into the functional skills class.\nMs. Cheek further testified that\n[a]s long as I\u2019ve known [Clara], she\u2019s been in the occupational course of study level [the middle range], which is a class for special-for kids that have learning disabilities that kind of go at a slower pace. And . . . they go out into the workforce and they work hours and come back in. They have to have so many hours to graduate.\nMs. Cheek also testified that contrary to Clara\u2019s testimony, the Randolph County Department of Social Services (\u201cDSS\u201d) paid her bills for her. Cheryl Lackey from the Randolph County DSS confirmed that DSS did pay Clara\u2019s bills and she further testified that Clara had a developmental disability and \u201cher IQ is lower than 70.\u201d Heather Cox, a special education teacher at Asheboro High School, testified that Clara was \u201cclassified as intellectually disabled in the mild category\u201d and that \u201cIQ-wise 100 is average\u201d and Clara has an IQ of 61. Ms. Cox also testified that Clara was in a\nmodified curriculum. They still do English, math, social studies, science, but it\u2019s-it\u2019s more job skill oriented. They learn how to write a resume. They learn how to make change. They learn how to balance a checkbook, basic things. They\u2019re not headed to college; this group is not. So it\u2019s things that they will use in the workforce as well as, you know, in their life after they graduate.\nMs. Cox further testified that it would be \u201creally difficult\u201d but not impossible for Clara to get an associate\u2019s degree from Randolph Community College and she was in the top range of her level of achievement at school in her classes. Following the State\u2019s presentation of evidence, defendant moved for dismissal based on insufficiency of the evidence and the trial court denied defendant\u2019s motion.\nDefendant testified that on the night in question he had gone out drinking with his wife and another couple. He testified that when he returned home, he believed that Clara was interested in a sexual encounter. Defendant admitted that Clara performed oral sex on him but claimed that this contact was consensual. Defendant testified that Clara had been to his house before to call boyfriends. He had talked to Clara\u2019s father on about three occasions and her father said that he was proud of Clara and she was a \u201cstraight A student.\u201d On 26 May 2008, the morning after the alleged incident with Clara, defendant drove to the Asheboro police station and gave a statement admitting that he engaged in fellatio with Clara in the kitchen of his home but the encounter was consensual. Defendant denied knowing that Clara had any mental disability until the police informed him that she did. At the close of the presentation of all evidence, defendant again moved for dismissal based on insufficiency of the evidence, which was subsequently denied by the trial court.\nOn 8 October 2009, a jury found defendant guilty of second-degree sexual offense and a crime against nature. The trial court consolidated the two convictions and sentenced defendant to a term of 73 to 97 months imprisonment. Defendant gave notice of appeal in open court.\nOn appeal defendant contends that his judgments should be vacated and his convictions reversed because (1) the trial court erred by not granting defense counsel\u2019s motion for a mistrial after his conflict of interest became apparent, as he was accused of suborning perjury, coaching a child witness, and making false statements to the court; (2) the trial court erred by not granting defendant\u2019s motion to dismiss the charges based on the insufficiency of the evidence; and (3) he was provided ineffective assistance of counsel at trial. We find the issue of insufficiency of the evidence dispositive and thus we will address only this issue.\nII. Insufficiency of the evidence\nDefendant argues that there was insufficient evidence presented by the State to show that Clara was \u201cmentally disabled\u201d for the purposes of establishing second-degree sexual offense. Specifically, defendant argues that \u201cthere was no expert testimony that [Clara] was so substantially incapable of appraising the nature of her conduct or resisting any sexual act or communicating unwillingness to submit to any sexual act[,]\u201d but, to the contrary, the State\u2019s evidence showed that she performed well in high school, babysat neighborhood children, planned to attend community college, was living with her boyfriend, and there was some indication that she was pregnant at the time of trial, but DSS had not raised any objection to her sexual relations with her boyfriend. The State, citing testimony from Clara\u2019s special education teacher, the police investigator, and the high school and DSS social workers, argues that \u201cthere was substantial evidence that [Clara] was mentally disabled.\u201d\nA. Standard of review\nIt is well established that\n[t]he proper standard of review on a motion to dismiss based on insufficiency of the evidence is the substantial evidence test. The substantial evidence test requires a determination that there is substantial evidence (1) of each essential element of the offense charged, and (2) that defendant is the perpetrator of the offense. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. If there is substantial evidence of each element of the charged offense, the motion should be denied.\nState v. Martin, 195 N.C. App. 43, 50, 671 S.E.2d 53, 59 (2009) (citation omitted). \u201cIn reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.\u201d State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (citations, and quotation marks omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).\nB. Second-degree sexual offense\nDefendant was charged with second-degree sexual offense. N.C. Gen. Stat. \u00a7 14-27.5 (2007), in pertinent part, states that\n(a) A person is guilty of a ual offense in the second degree if the person engages in a sexual act with another person:\n(1) By force and against the will of the other person; or\n(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.\nSee State v. Williams, \u2014 N.C. App. \u2014,-, 698 S.E.2d 542, 544 (2010) (\u201cTo support the charge of second-degree sexual offense, the State was required to present substantial evidence that the defendant (1) engaged in a sexual act; (2) with a person who is mentally disabled, mentally incapacitated, or physically helpless; and (3) knew or should reasonably have known that the other person is mentally disabled, mentally incapacitated, or physically helpless.\u201d) \u201cOne who is mentally disabled under the sex offense laws is statutorily deemed incapable of consenting to intercourse or other sexual acts.\u201d Williams,-N.C. App. at-, 698 S.E.2d at 544. (citation, brackets, and quotation marks omitted). N.C. Gen. Stat. \u00a7 14-27.5(a)(1) is not applicable to the facts before us, as the trial court did not instruct the jury on the use of force. Additionally, there was no evidence presented showing that Clara was \u201cmentally incapacitated, or physically helpless[.]\u201d Therefore, those portions of N.C. Gen. Stat. \u00a7 14-27.5 are not relevant to our analysis.\nThe trial court did give the jury the following instruction as to \u201cmental disability];]\u201d\nSecond, that the victim was mentally disabled. A person is mentally disabled if she suffers from a mental retardation or mental disorder and this mental retardation or mental disorder temporarily or permanently renders her substantially incapable of appraising the nature of her conduct, or resisting a sexual act or communicating unwillingness to submit to a sexual act.\nAccording to N.C. Gen. Stat. \u00a7 14-27.1(1) (2007), \u201cmentally disabled\u201d means:\n(i) a victim who suffers from mental retardation, or (ii) a victim who suffers from a mental disorder, either of which temporarily or permanently renders the victim substantially incapable of appraising the nature of his or her conduct, or of resisting ... a sexual act, or of communicating unwillingness to submit to ... a sexual act.\nThe State did not contend that Clara had a \u201cmental disorder\u201d which \u201ctemporarily or permanently renders the victim substantially incapable of appraising the nature of his or her conduct, or of resisting ... a sexual act, or of communicating unwillingness to submit to . . . a sexual act.\u201d See id. Therefore, the dispositive issue before us is whether the evidence presented by the State was sufficient to show that Clara suffered from (1) mental retardation; (2) which \u201ctemporarily or permanently render[ed] [her] . . . substantially incapable of appraising the nature of . . . her conduct, or of resisting ... a sexual act, or of communicating unwillingness to submit to ... a sexual act.\u201d See id. We hold that the State\u2019s evidence was not sufficient to satisfy this element of the crime of second-degree sexual offense.\n1. Mental retardation\nThe first element of \u201cmental disability\u201d under N.C. Gen. Stat. \u00a7 14-27.1(1) is \u201cmental retardation.\u201d The phrase \u201cmental retardation\u201d is not further defined in Article 7A of our General Statutes; therefore, we must assume that the legislature intended its ordinary meaning to apply. See 1 Lafayette Transp. Serv., Inc. v. Robeson Cty., 283 N.C. 494, 500, 196 S.E.2d 770, 774 (1973) (\u201cUnless the contrary appears, it is presumed that the Legislature intended the words of the statute to be given the meaning which they had in ordinary speech at the time the statute was enacted.\u201d). The ordinary meaning of \u201cmental retardation\u201d is\nsubaverage intellectual ability equivalent to or less than an IQ of 70 that is accompanied by significant deficits in abilities (as in communication or self-care) necessary for independent daily functioning, is present from birth or infancy, and is manifested esp. by delayed or abnormal development, by learning difficulties, and by problems in social adjustment.\nMerriam-Webster\u2019s Collegiate Dictionary 775 (11th ed. 2005). Courts have considered the definition of mental retardation in many contexts, both criminal and civil. The United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335 (2002), which held that capital punishment of mentally retarded defendants is a cruel and unusual punishment prohibited by the 8th Amendment of the United States Constitution, discussed this definitional problem, noting that:\nThe American Association on Mental Retardation (AAMR) defines mental retardation as follows: \u201cMental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.\u201d Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992).\nThe American Psychiatric Association\u2019s definition is similar: \u201cThe essential feature of Mental Retardation is significantly sub-average general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.\u201d American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). \u201cMild\u201d mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Id,., at 42-43.\nId. at 308 n.3, 153 L. Ed. 2d at 342 n.3. The United States Supreme Court recognized that the determination of mental retardation is essentially a medical diagnosis which is based upon a combination of factors.\n[C]linical definitions of mental retardation require not only sub-average intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.. . . [T]here is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders.\nId. at 318,153 L. Ed 2d at 348 (footnotes omitted). For the purpose of sentencing in a capital punishment case, our legislature has defined \u201cmentally retarded\u201d as \u201c[significantly subaverage general intellectual functioning, existing concurrently with significant limitations in adaptive functioning, both of which were manifested before the age of 18.\u201d N.C. Gen. Stat. \u00a7 15A-2005(a)(1)(a) (2007).\nAll of the definitions of \u201cmental retardation\u201d noted in the statutes and caselaw above are generally consistent with the dictionary definition. All of the definitions include three elements: (1) subaverage intellectual ability; (2) significant deficits in abilities needed for independent daily functioning; and (3) the condition was present from a young age. The State presented evidence that Clara had a low I.Q., below 70, or 61, which would be in the range of mental retardation. The State also presented evidence that Clara had some deficits in abilities needed for daily living, although whether they were substantial or significant deficits may be debatable.'In addition, her condition was present from a young age. But even if the evidence was sufficient to establish \u201cmental retardation[,]\u201d N.C. Gen. Stat. \u00a7 14-27.1(1) requires not just a diagnosis of mental retardation, but also evidence that the mental retardation is of such a degree that it \u201ctemporarily or permanently renders the victim substantially incapable of appraising the nature of his or her conduct, or of resisting ... a sexual act, or of communicating unwillingness to submit to ... a sexual act.\u201d N.C. Gen. Stat. \u00a7 14-27.1(1) thus recognizes that there is a wide range of abilities among those who have a diagnosis of mental retardation. Some are able to function well in society and live independently or with minimal assistance, while others cannot.\n2. Renders victim substantially incapable of resistance\nThe second element of the definition of \u201cmental disability\u201d addresses the victim\u2019s ability to resist a sexual advance. Even if the State\u2019s evidence satisfied the ordinary definition of \u201cmental retardation,\u201d it did not demonstrate that Clara was \u201csubstantially incapable of appraising the nature of. . . her conduct, or of resisting ... a sexual act, or of communicating unwillingness to submit to ... a sexual act[,]\u201d as stated in N.C. Gen. Stat. \u00a7 14-27.1(1). The State presented the following evidence regarding Clara\u2019s mental capacity: Clara was in the top range of her level of achievement at high school in her classes, making A\u2019s and B\u2019s; she babysat neighborhood children; she planned to get her driver\u2019s license and to attend community college after graduation; at the time of trial, she was living with her boyfriend and his mother; and there was some indication that she was pregnant but there had been no DSS intervention or charges filed against the boyfriend. Clara was also described as \u201cchildlike\u201d; she attended classes for children with learning disabilities; she was classified as intellectually disabled in the mild category, with an I.Q. of 61; DSS paid her bills for her; and it would be difficult for her to get an associate\u2019s degree from the local community college.\nIn State v. Williams,-N.C. App. \u2014, 698 S.E.2d 542 (2010), and State v. Washington, 131 N.C. App. 156, 506 S.E.2d 283 (1998), this Court addressed the issue of whether there was sufficient evidence to establish the victim\u2019s mental disability. In Williams, the defendant was convicted on one count of second-degree sexual offense and one count of a crime against nature. Id. at \u2014, 698 S.E.2d at 544. On appeal, the defendant contended that the trial court erred as \u201cthere was insufficient evidence that [the victim] was mentally disabled pursuant to North Carolina General Statutes, section 14-27.1(1).\u201d Id. Specifically, the defendant argued that there was insufficient evidence to show that the victim was substantially incapable of resisting a sexual act, pursuant to N.C. Gen. Stat. \u00a7 14-27.1(1). Id. at \u2014, 698 S.E.2d at 545. Citing State v. Oliver, 85 N.C. App. 1, 20, 354 S.E.2d 527, 538 (1987), this Court noted that\nthe element of \u201csubstantially incapable of... resisting the... sexual act\u201d is not negated by the victim\u2019s ability to verbally protest or even to engage in some physical resistance of the abuse. The words \u201csubstantially incapable\u201d show the Legislature\u2019s intent to include within the definition of \u201cmentally [disabled]\u201d those persons who by reason of their mental retardation or disorder would give little or no physical resistance to a sexual act.\nId. The trial court noted that expert testimony showed that the victim\nhad a full scale I.Q. of fifty-eight, placing him in the range of mild mental retardation];] ... had difficulty expressing himself verbally; was able to read very simple words like go, cat, and in; was able to solve very simple addition and subtraction problems; and had difficulty answering questions about social abilities, every-day-life tasks.\nId. (quotation marks and brackets omitted). The victim\u2019s sister testified that the victim \u201cneeded daily assistance with cooking, washing his clothes, and making sure he brushed his teeth.\u201d Id. (quotation marks and brackets omitted). The victim testified that he did not want the defendant to perform oral sex on him and also told police that \u201che did not want the incident to take place.\u201d Id. This Court concluded that nothwithstanding the victim\u2019s unwillingness to receive oral sex, \u201cdefendant completed the sexual act, allowing an inference that [the victim] was unable to resist the sexual act.\u201d Id. This Court then held that \u201c[w]hen taken in the light most favorable to the State, a reasonable juror could find that [the victim] was substantially incapable of resisting a sexual act and was \u2018mentally disabled\u2019 pursuant to North Carolina General Statutes, section 14-27.1(1).\u201d Id. at-, 698 S.E.2d at 546.\nLikewise in Washington, the defendant was indicted on two counts of second-degree rape and two counts of second-degree sexual offense. Id. at 159, 506 S.E.2d at 285. At trial, the State presented expert witness testimony from Dr. Monty Grubb, as an expert \u201cin the field of psychology, specifically in the field of working with, counseling, and treating mentally retarded people.\u201d Id. at 164, 506 S.E.2d at 288. For over a year, Dr. Grubb had met with the victim \u201conce a month for counseling sessions lasting twenty to thirty minutes.\u201d Id. at 164, 506 S.E.2d at 289. Dr. Grubb testified\nthat [the victim] was mentally retarded. Based on his experiences and on his review of psychological evaluations performed on [the victim], Dr. Grubb testified that [the victim] functions around the level of an eight-year-old, both mentally and emotionally. He testified that [the victim\u2019s] ability to make informed decisions about \u201canything complicated\u201d is significantly decreased by her mental retardation. In Dr. Grubb\u2019s words, \u201cShe can\u2019t evaluate a lot of different things and put it together and make a decision in her own best interest most of the time. Weighing all the consequences and all the information is something that she is not very capable of doing.\u201d\nId. at 164-65, 506 S.E.2d at 289. In response to the State\u2019s question as to how the victim \u201cwould react to a sexual advance made by an adult with whom she was only vaguely familiar[,]\u201d Dr. Grubb answered that the victim \u201cmight \u2018freeze,\u2019 because her \u2018initial reaction could be so emotionally laden, not realizing what was happening, . . . given the emotional nature of the situation],]\u2019 \u201d and, consequently, she \u201cmight easily be taken advantage of by a stranger.\u201d Id. at 165, 506 S.E.2d at 289. On appeal from his conviction on all charges, the defendant contended that \u201cthe trial court erred by denying his motion to dismiss all charges.\u201d Id. at 166, 506 S.E.2d at 290. This Court noted that\nif there is substantial evidence that a person has engaged in prohibited sexual conduct in violation of G.S. 14-27.3 or 14-27.5, and that the victim was mentally defective, and that the person performing the act knew or reasonably should have known that the victim was mentally defective, then ipso facto, there is substantial evidence that the person has engaged in such conduct \u201cby force and against the will\u201d of the victim.\nId. at 167, 506 S.E.2d at 290. In affirming the denial of the defendant\u2019s motion to dismiss, this Court held that\nthere was substantial evidence that defendant engaged in both vaginal intercourse and a \u201csexual act\u201d with [the victim;] .... that [the victim] was mentally retarded, and that defendant knew of [the victim\u2019s] retardation[;] .... [and] that [the victim\u2019s] mental retardation rendered her substantially incapable of \u201cresisting the act of vaginal intercourse or a sexual act.\u201d\nId.\nWe first note that the Court in Williams inferred from the victim\u2019s actions that he \u201cwas unable to resist the sexual act[,]\u201d as required by N.C. Gen. Stat. \u00a7 14-27.1(1) because the victim testified that he did not want the sexual act performed but ultimately allowed the defendant to perform the sexual act.-N.C. App. at \u2014, 698 S.E.2d at 545. Yet this inference was based in part on the expert\u2019s testimony that the victim \u201chad difficulty expressing himself verbally; was able to read very simple words like go, cat, and in; was able to solve very simple addition and subtraction problems; and had difficulty answering questions about social abilities, every-day-life tasks.\u201d Id. Here, defendant forced Clara\u2019s head down to his penis and she \u201c[t]ried to pull away[,]\u201d indicating that she did not want to perform the sexual act but ultimately did perform oral sex on defendant. There was no evidence that Clara had difficulty with communication; she also promptly reported defendant\u2019s acts to her friend, Madison, her father and the police on the day of the incident and testified at trial clearly, with little if any indication that she had difficulty understanding or' answering questions from counsel. We cannot draw an inference regarding Clara\u2019s inability to resist a sexual advance, as did the court in Williams, as there was no expert testimony regarding the effect of her mental retardation upon her ability to communicate resistance to sexual advances. The evidence here demonstrates that Clara was functioning at a much higher level that the victim in Williams, as she was performing well in school and social situations. The expert witnesses in Williams and Washington testified about the nature and extent of each victim\u2019s mental retardation, noting the victim\u2019s communication and reading skills, social abilities, mental and emotional age, cognitive limitations, decision-making skills, and responses to sexual advances by adults. This expert testimony was based on their professional knowledge, psychological evaluations performed on the victims, and from observations made during counseling sessions. Here, unlike Williams or Washington, all of the State\u2019s witnesses were lay witnesses and none were qualified as experts in evaluating or treating persons with mental disabilities. N.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2007) limits lay witnesses\u2019 testimony to \u201cthe form of opinions or inferences ... to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d It is possible that in some cases a lay witness may have sufficient knowledge and understanding of the victim or the victim\u2019s disability may be so severe and obvious that \u201crationally based on [his] perception[s][,]\u201d see id, he could provide evidence to support a finding that the victim\u2019s mental retardation or mental disorder was such that the victim was \u201csubstantially incapable of appraising the nature of his or her conduct, or of resisting ... a sexual act, or of communicating unwillingness to submit to ... a sexual act.\u201d See N.C. Gen. Stat. \u00a7 14-27.1(1). In this case, the witnesses did not, and as lay witnesses could not, give an opinion that Clara, who has mild mental retardation but is also functional enough to perform well in school and communicate well with others is \u201c[m]entally disabled\u201d as defined by N.C. Gen. Stat. \u00a7 14-27.1(1), based only on their perceptions. N.C. Gen. Stat. \u00a7 8C-1, Rule 702(a) (2007) states that \u201c[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\u201d As illustrated by Williams and Washington, an expert witness qualified to evaluate the victim\u2019s mental retardation and ability to function was necessary in this situation to provide the \u201cscientific, technical or other specialized knowledge],]\u201d see id., to assist the jurors in understanding the extent of Clara\u2019s mental retardation and to discern whether she was \u201csubstantially incapable of appraising the nature of . . . her conduct, or of resisting ... a sexual act, or of communicating unwillingness to submit to ... a sexual act.\u201d See N.C. Gen. Stat. \u00a7 14-27.1(1).\nWe note that in cases where a defendant who is charged with a crime claims to be mentally retarded, our Courts have frequently relied on expert opinions to determine the existence and extent of a defendant\u2019s mental retardation. See State v. Ortez, 178 N.C. App. 236, 247-48, 631 S.E.2d 188, 196-97 (2006) (the Court considered contrasting expert witness testimony regarding the extent of the defendant\u2019s mental retardation in determining whether defendant knowingly, intelligently, and voluntarily waived his Miranda rights), appeal dismissed and disc. review denied, 361 N.C. 434, 649 S.E.2d 642 (2007); State v. Nicholson, 355 N.C. 1, 56, 558 S.E.2d 109, 145-46 (2002) (holding no error in the trial court not giving a peremptory instruction on the mitigating factor \u2014 \u201cThe age of the defendant at the time of the crime\u201d \u2014 for purposes of capital punishment sentencing pursuant to N.C. Gen. Stat. \u00a7 15A-2000(f)(7) because the defendant\u2019s \u201cmental age was by no means established by a consensus of experts\u201d as the defendants\u2019 experts testified that the 32 year old defendant\u2019s mental age was between 12 1/2 and 13 years of age and between \u201cmild mental retardation and borderline IQ\u201d but other expert witnesses testified that \u201chis social skills were described as \u2018pretty good\u2019 and as \u2018his biggest strength.\u2019 \u201d); State v. Zuniga, 348 N.C. 214, 217-18, 498 S.E.2d 611, 613 (1998) (because expert witness testimony established that the defendant had \u201ca history of mild to moderate mental retardation and organic brain syndrome of moderate range[;]\u201d and an IQ of 56 or 64, indicating a mental age of 7.4 years; and had very low impulse control, it was prejudicial error for the trial court not to submit the N.C. Gen. Stat. \u00a7 15A-2000(f)(7) mitigating circumstance regarding the defendant\u2019s age at the time of the crime to the jury). In addition, the expert evaluation of mental retardation normally requires specialized testing, including IQ tests and other psychological tests, as well as observation of the person who is being evaluated, to determine the existence and degree of mental retardation.\nLikewise in civil cases, our Courts have relied on expert opinions to determine the existence and extent of a party\u2019s mental retardation. See In re LaRue, 113 N.C. App. 807, 811-12, 440 S.E.2d 301, 303-04 (1994) (the trial court erred in terminating the parental rights of the parents as the expert witness testimony that they had \u201cIQ scores of 71 and 72[,]\u201d were \u201cborderline\u201d mentally retarded, and did not exhibit \u201csignificant defects in adaptive behavior\u201d did not support a conclusion \u201cthat they are mentally retarded within the meaning of N.C. Gen. Stat. \u00a7 7A-289.32(7)\u201d); Gilliam v. Perdue Farms, 112 N.C. App. 535, 537, 435 S.E.2d 780, 781 (1993) (the trial court in holding that there was competent evidence to support the Industrial Commission\u2019s conclusion that the claimant was disabled relied in part on expert testimony that the claimant\u2019s \u201cfunctional capacity assessment\u201d revealed that he was \u201ccognitively dysfunctional and appealed] to be mentally retarded\u201d); Suggs v. Snow Hill Milling Co., 100 N.C. App. 527, 530-31, 397 S.E.2d 240, 241-42 (1990) (this Court relied in part on expert testimony that the plaintiff \u201chad [a] considerable mental handicap\u201d in determining that competent evidence supported the Industrial Commission\u2019s findings).\nIn this case, the necessity for expert testimony is highlighted by defendant\u2019s claim that he did not know and reasonably would not know from his observations of Clara that she was mentally disabled, as his knowledge of her disability is also an element of second-degree sexual offense under N.C. Gen. Stat. \u00a7 14-27.5. Defendant claimed, and Clara\u2019s own testimony confirmed, that he knew Clara as one of his daughter\u2019s friends who attended school, was a good student, and appeared to function as a normal 17 year old girl.\nAccordingly, we hold that in situations such as presented by this case, where the victim\u2019s IQ falls within the range considered to be \u201cmental retardation[,]\u201d but who is highly functional in her daily activities and communication, the State must present expert testimony as to the extent of the victim\u2019s mental disability as defined by N.C. Gen. Stat. \u00a7 14-27.5. Here no expert witness testified as to the extent of Clara\u2019s mental disability. Even when viewed in the light most favorable to the State, see Fritsch, 351 N.C. at 378, 526 S.E.2d at 455, the State\u2019s lay witness testimony was insufficient to establish that Clara\u2019s mental retardation \u201ctemporarily or permanently rendered] [her] . . . substantially incapable of appraising the nature of... her conduct, or of resisting ... a sexual act, or of communicating unwillingness to submit to ... a sexual act.\u201d See N.C. Gen. Stat. \u00a7 14-27.1(1). Thus, we hold there was insufficient evidence to satisfy this required element of second-degree sex offense. See N.C. Gen. Stat. \u00a7 14-27.5. Therefore, the trial court erred in not granting defendant\u2019s motion to dismiss for insufficient evidence as to this charged offense.\nC. Crime against Nature\nDefendant, citing State v. Whiteley, 172 N.C. App. 772, 616 S.E.2d 576 (2005), argues that since there was insufficient evidence of second-degree sexual offense, there was also insufficient evidence of the crime against nature, so the trial court erred in denying his motion to dismiss on that charge. The State counters that the trial court properly denied defendant\u2019s motion to dismiss for insufficiency of the evidence as to the crime against nature charge, as this charge \u201cwas based on non-consensual sexual acts[.]\u201d\nN.C. Gen. Stat. \u00a7 14-177 (2007) states that \u201c[i]f any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.\u201d \u201c[T]he legislative intent and purpose of G.S. 14-177 ... is to punish persons who undertake by unnatural and indecent methods to gratify a perverted and depraved sexual instinct which is an offense against public decency and morality.\u201d State v. Stubbs, 266 N.C. 295, 298, 145 S.E.2d 899, 902 (1966). The act of fellatio is considered a crime against nature. State v. Poe, 40 N.C. App. 385, 387-88, 252 S.E.2d 843, 844-45, cert. denied and appeal dismissed, 298 N.C. 303, 259 S.E.2d 304 (1979), appeal dismissed, 445 U.S. 947, 63 L. Ed. 2d 782 (1980).\nIn Whiteley, the defendant challenged the constitutionality of N.C. Gen. Stat. \u00a7 14-177 in light of the United States Supreme Court\u2019s holding in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508 (2003). 172 N.C. App. at 773, 616 S.E.2d at 577-78. The Court in Whiteley noted that in Lawrence the Court held that a Texas law \u201cprohibiting \u2018deviate sexual intercourse\u2019 with a member of the same sex violated the due process clause, where the individuals charged were adults engaging in consensual, private sexual activity[,]\u201d and that the holding in Lawrence was \u201cbased on the unconstitutional infringement of the liberty interest in private, intimate acts between consenting adults.\u201d 172 N.C. App, at 776, 616 S.E.2d at 579 (citing Lawrence, 539 U.S. at 574-75, 578, 156 L. Ed. 2d at 523, 525). The Court in Whiteley also noted that the \u201cliberty interest in personal relations\u201d in Lawrence did have limitations as the opinion \u201cclearly indicates that state regulation of sexual conduct involving minors, non-consensual or coercive conduct, public conduct, and prostitution falls outside the boundaries of the liberty interest protecting personal relations and is therefore constitutionally permissible.\u201d Id. at 776-77, 616 S.E.2d at 579-80. In holding that N.C. Gen. Stat. \u00a7 14-177 was constitutional on its face, in light of the holding in Lawrence, the Court held \u201cthat section 14-177 may properly be used to prosecute conduct in which a minor is involved, conduct involving non-consensual or coercive sexual acts, conduct occurring in a public place, or conduct involving prostitution or solicitation^]\u201d Id. at 779, 616 S.E.2d at 581. In addressing the defendant\u2019s argument as to the application of N.C. Gen. Stat. \u00a7 14-177 to the facts before them, the Court held that \u201cin order for the application of section 14-177 to be constitutional post-Lawrence . . . the State must prove beyond a reasonable doubt that defendant committed the sexual act, . . . and that such an act was non-consensual.\u201d Id. at 779, 616 S.E.2d at 581. In applying this rule, the Court held that the trial court had erred in its instructions to the jury \u201c[a]s the jury was not instructed to consider whether the act was committed without [the victim\u2019s] consent[.]\u201d Id. at 780, 616 S.E.2d at 581.\nThe State alleged that defendant committed the crime of second-degree sexual offense because he engaged in a sexual act with Clara, a mentally disabled person who was incapable of consenting to any sexual acts. See Williams, \u2014 N.C. App. at \u2014, 698 S.E.2d at 544. Thus, the State\u2019s proof of the lack of consent is based solely upon Clara\u2019s inability to consent because of her mental disability. Yet we held above that the State presented insufficient evidence to meet N.C. Gen. Stat. \u00a7 14-27.1(l)\u2019s definition of \u201cmentally disabled.\u201d Just as there was insufficient evidence to show that Clara was incapable of consenting for purposes of proving the charged crime of second-degree sexual offense, there was also insufficient evidence to prove that Clara was incapable of consenting for purposes of a N.C. Gen. Stat. \u00a7 14-177 crime against nature charge, under the standard established by Whiteley. Thus, the State did not present sufficient evidence to \u201cprove beyond a reasonable doubt that defendant committed the sexual act, . . . and that such an act was non-consensual.\u201d Whiteley, 172 N.C. at 779, 616 S.E.2d at 581. Accordingly, the trial court erred in denying defendant\u2019s motion to dismiss as to the crime against nature charge. As there was insufficient evidence of both of the charges against defendant and the trial court erred in not granting defendant\u2019s motion to dismiss, we reverse and vacate defendant\u2019s convictions for second-degree sexual offense and the crime against nature.\nVACATED.\nChief Judge MARTIN and Judge STEPHENS concur.\n. We will refer to the defendant\u2019s minor daughter by the pseudonym Madison to protect her identity and for ease of the reading.\n. We will refer to the victim by the pseudonym Clara to protect her identity and for ease of reading.\n. Were we to accept the State\u2019s argument that Clara\u2019s diagnosis of mental retardation along with the evidence of her capabilities as presented at trial are sufficient to show that she is unable to consent to a sexual act under N.C. Gen. Stat. \u00a7 14-27.1(1), Clara would be legally incapable of ever consenting to sexual acts with anyone, including her boyfriend, and he \u2014 or even her future husband, should she ever marry \u2014 would be subject to criminal liability for any sexual activity with Clara.\n. A person can be found guilty of second-degree rape pursuant to N.C. Gen. Stat. \u00a7 14-27.3 (2007) \u201cif the person engages in vaginal intercourse with another person: .... Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless.\u201d (Emphasis added).\n. Although we recognize that a teacher or a social worker may have specialized training which could permit her to testify as an expert witness, no witness in this case was proffered as an expert or presented testimony as an expert witness.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Elizabeth J. Weese, for the State.", "M. Alexander Chams, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SAMUEL KRIS HUNT, Defendant\nNo. COA10-666\n(Filed 3 May 2011)\n1. Sexual Offenses\u2014 second-degree \u2014 mentally disabled victim \u2014 evidence not sufficient\nThe trial court erred by denying defendant\u2019s motion to dismiss a charge of second-degree sex offense where defendant contended that there was insufficient evidence that the victim was mentally disabled. The first element of mental disability under N.C.G.S. \u00a7 14-27.1(1) is \u201cmental retardation;\u201d however, there is a wide range of abilities among those with such a diagnosis and the evidence must also show that the victim was substantially incapable of appraising the nature of his or her conduct, of resisting a sexual act, or of communicating unwillingness to submit to a sexual act. The State\u2019s evidence did not satisfy the latter requirement.\n2. Sexual Offenses\u2014 crime against nature \u2014 mentally disabled victim \u2014 evidence not sufficient\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of crime against nature where the State\u2019s theory was that defendant committed the offense against a mentally disabled person who was incapable of consenting to any sexual acts. There was insufficient evidence that she was incapable of consenting.\nAppeal by defendant from judgment entered on 8 October 2009 by Judge Edwin G. Wilson, Jr. in Superior Court, Randolph County. Heard in the Court of Appeals 26 October 2010.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Elizabeth J. Weese, for the State.\nM. Alexander Chams, for defendant-appellant." }, "file_name": "0452-01", "first_page_order": 460, "last_page_order": 477 }