STATE OF NORTH CAROLINA
v. Henderson County
Nos. 03 CRS 5404,
CHRIS HOLLEY 04 CRS 322
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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