State v. Hunt, 21 N.C. App. 489 (Jul. 17, 2012)

The defendant could not be convicted of second-degree sexual offense (mentally disabled victim) and crime against nature (where lack of consent was based on the fact that the victim was mentally disabled, incapacitated or physically helpless) based on the same conduct (fellatio). The court found that “on the particular facts of Defendant’s case, crime against nature was a lesser included offense of second-degree sexual offense, and entry of judgment on both convictions subjected Defendant to unconstitutional double jeopardy.” [Author’s note: The N.C. Supreme Court has previously held that crime against nature is not a lesser-included offense of forcible rape or sexual offense, State v. Etheridge, 319 N.C. 34, 50–51 (1987); State v. Warren, 309 N.C. 224 (1983), and that a definitional test applies when determining whether offenses are lesser-included offenses, State v. Nickerson, 316 N.C. 279 (2011).].