An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-1314

Filed: 2 August 2005


    v.                            Henderson County
                                Nos. 03 CRS 5404,
CHRIS HOLLEY                            04 CRS 322

    Appeal by defendant from judgments entered 11 May 2004 by Judge C. Philip Ginn in Henderson County Superior Court. Heard in the Court of Appeals 25 July 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State.

    Allen W. Boyer for defendant-appellant.

    LEVINSON, Judge.

    Defendant Chris Holley was indicted for second degree rape and second degree sexual offense. The case was tried at the 10 May 2004 Criminal Session of Henderson County Superior Court.
    The State presented evidence at trial which tended to show the following: The defendant, Chris Holley, lived with the victim and her mother in Hendersonville, North Carolina. The victim, who was nineteen, had an IQ score of forty. She testified that the defendant touched her vagina with his hand more than once, and also touched her vagina with his penis. She testified that she did not ask him to do this, and it made her feel uncomfortable. It was later learned that she was pregnant.
    Defendant admitted to police that he had digitally penetratedthe victim's vagina. He claimed that the victim was sexually aggressive, and that initially he did this “with the intentions of scaring her but it did no good.” When that did not work, defendant digitally penetrated her vagina in order to get her to climax. Defendant denied having sexual intercourse with the victim.
     Defendant was convicted of second degree rape and second degree sex offense and was sentenced to consecutive terms of 96 to 125 months imprisonment. Defendant appeals.
     Defendant argues that there was insufficient evidence to support the convictions. Specifically, defendant contends that (1) as to second degree rape, there was no evidence that he penetrated the victim with his penis, and (2) as to second degree rape and second degree sex offense, defendant contends that there was a lack of substantial evidence that he knew or should have reasonably known that the victim was incapable of consent due to mental incapacity. After careful review of the records, briefs and contentions of the parties, we find no error.
     To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)).
    As to second degree rape, the State was required to prove that defendant engaged in vaginal intercourse with a person who was“mentally disabled” or “mentally incapacitated.” N.C.G.S. § 14- 27.3 (2003). “ [V]aginal intercourse [] is defined as 'the slightest penetration of the female sex organ by the male sex organ.'” State v. Summers, 92 N.C. App. 453, 456, 374 S.E.2d 631, 633 (1988) (quoting State v. Brown, 312 N.C. 237, 244-45, 321 S.E.2d 856, 861 (1984)). The victim testified that defendant touched her vagina with his penis, and that she went to the doctor because of what happened with the defendant. When she went to the doctor, it was learned that the victim was pregnant. Additionally, Detective Todd Letterman of the Hendersonville Police Department testified that the victim told him that “actual sexual intercourse was performed after repeated requests by the defendant.” In the light most favorable to the State, a jury could properly conclude that defendant engaged in vaginal intercourse with the victim.
    As to the offenses of second degree rape and second degree sex offense, we disagree with defendant's contention that the State failed to prove he knew or reasonably should have known that the victim lacked the capacity to consent due to her mental disability. To obtain convictions for second degree rape and second degree sex offense, the State must prove “the person performing the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless.” N.C.G.S. §§ 14- 27.3(a)(2) and 14-27.5(a)(2) (2003). This Court has stated:
        A person is "mentally defective" if she "suffers from mental retardation . . . which temporarily or permanently renders [her] substantially incapable of appraising the nature of . . . her conduct, or of resisting the act of vaginal intercourse or a sexualact, or of communicating unwillingness to submit to the act of vaginal intercourse or a sexual act." Our Supreme Court has indicated that one who is "mentally defective" under the sex offense laws is "statutorily deemed incapable of consenting" to intercourse or other sexual acts.

State v. Washington
, 131 N.C. App. 156, 167, 506 S.E.2d 283, 290 (1998) (quoting N.C.G.S. § 14.27.1(1) [2003]).
    Susan Recktenwald, the Assistant Director for Exceptional Children for Special Education at Henderson County Public Schools, testified that the victim had an IQ score of 40. Recktenwald further testified that the victim was “mildly mentally retarded,” and functioned at below a fourth grade level, or like a nine year old child. The victim's father testified that “she is very limited-limited as far as being an adult.” For example, he stated that she would not perform basic hygiene, such as washing her hair, without being reminded. She had difficulty vacuuming or sweeping around the house because she had a problem focusing on tasks and was “very easily sidetracked.”
    The defendant was not a stranger to the victim. He was dating her mother and lived with them for at least two months. Defendant had the opportunity to get to know the victim as more than just a casual observer. Thus, he would have discovered the victim's mental disability, and a jury could reasonably conclude that he knew, or should have known, that she lacked the capability of consenting to intercourse. Accordingly, we conclude that the trial court did not err in denying defendant's motion to dismiss.
    No Error.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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