N.C.P.I.—Crim. 207.90

NOTE WELL: Use this instruction for offenses

committed prior to December 1, 2015. For offenses

committed on or after December 1, 2015 use N.C.P.I.

Crim.—207.90A.

The defendant has been charged with sexual battery. For you to

find the defendant guilty of this offense, the State must prove three

things beyond a reasonable doubt.

First, that the defendant engaged in sexual contact with another

person. Sexual contact means

(a) [touching the [sexual organ] [anus] [breast] [groin] [buttocks]

of any person]

(b) [a person touching another person with their own [sexual

organ] [anus] [breast] [groin] [buttocks]]

(c) [a person [[ejaculating] [emitting] [placing]] [semen] [urine]

[feces] upon any part of another person]

Second, that

(a) [the contact was by force without the other person’s consent

and against the will of the other person (Consent induced by

fear is not consent at law).]]

(b) [the other person was [mentally disabled] [mentally

incapacitated] [physically helpless] and the defendant [knew]

[should reasonably have known] that the victim was [mentally

disabled] [mentally incapacitated] [physically helpless],

And Third, that the defendant acted for the purpose of [sexual

arousal] [sexual gratification] [sexual abuse].

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date the defendant engaged in sexual contact with

another person, that

(a) [the contact was by force without the other person’s consent

and it was against the will of the other person (Consent

induced by fear is not consent at law).]

(b) [the other person was [mentally disabled] [mentally

incapacitated] [physically helpless]] and the defendant [knew]

[should reasonably have known] that the other person was

[mentally disabled] [mentally incapacitated] [physically

helpless], and

the defendant acted for the purpose of [sexual arousal] [sexual

gratification] [sexual abuse], it would be your duty to return a verdict of

guilty. If you do not so find, or have a reasonable doubt as to one or

more of these things, it would be your duty to return a verdict of not

guilty.

NOTE WELL: If a party requests an instruction on

Assault on a Female, see State v. Martin, 222 N.C.

App. 213 (2012), where the defendant was convicted

of two counts of first-degree sexual offense, and the

North Carolina Court of Appeals held that assault on a

female is not a lesser included offense of first-degree

sexual offense, because to convict for first-degree

sexual offense, it need not be shown that the victim

is a female, that the defendant is a male, or that the

defendant is at least 18 years of age.

See also State v. Corbett, 196 N.C. App. 508 (2009), holding

the crime of assault is not a lesser included offense of

sexual battery because all the essential elements of assault

are not essential elements of sexual battery.