The court per curiam, with an equally divided court, affirmed the decision below, State v. Huss, 223 N.C. App. 480 (2012). That decision thus is left undisturbed but without precedential value. In this case, involving charges of second-degree sexual offense and second-degree rape, the court of appeals had held that the trial court erred by denying the defendant’s motion to dismiss. The State proceeded on a theory that the victim was physically helpless. The facts showed that the defendant, a martial arts instructor, bound the victim’s hands behind her back and engaged in sexual activity with her. The statute defines the term physically helpless to mean a victim who either is unconscious or is physically unable to resist the sexual act. Here, the victim was not unconscious. Thus, the only issue was whether she was unable to resist the sexual act. The court of appeals began by rejecting the defendant’s argument that this category applies only to victims who suffer from some permanent physical disability or condition, instead concluding that factors other than physical disability could render a victim unable to resist the sexual act. However, it found that no such evidence existed in this case. The State had argued that the fact that the defendant was a skilled fighter and outweighed the victim supported the conclusion that the victim was physically helpless. The court of appeals rejected this argument, concluding that the relevant analysis focuses on “attributes unique and personal of the victim.” Similarly, the court of appeals rejected the State’s argument that the fact that the defendant pinned the victim in a submissive hold and tied her hands behind her back supported the conviction. It noted, however, that the evidence would have been sufficient under a theory of force. The defendant also was convicted of kidnapping the victim for the purpose of facilitating second-degree rape. The court of appeals reversed the kidnapping conviction on grounds that the State had proceeded under an improper theory of second-degree rape (the State proceeded on a theory that the victim was physically helpless when in fact force would have been the appropriate theory). The court of appeals concluded: “because the State proceeded under an improper theory of second-degree rape, we are unable to find that the State sufficiently proved the particular felonious intent alleged here.”