¶1(concurring specially).
¶2I write specially to voice a caveat to the prosecution. I have no doubt that there was substantial evidence for the jury to find that the victims did not understand the nature of the conduct involved. I share the sentiment of the majority that the State only “minimally” met its burden of establishing that this lack of understanding arose by virtue of mental disease or defect. Indeed, if our standard of review were other than that of reviewing the evidence in the light most favorable to the prosecution, a different result would have ensued.
¶3It is well to bear in mind that there is no presumption of incompetence simply because a developmentally disabled person is receiving special services or living at a residence for the developmentally disabled. North Dakota Century Code § 25-01.2-03. Nor is a developmentally disabled person deprived of the right to “interact” with members of the opposite sex. NDCC § 25-01.2-03(3). I believe the State should, in cases like the instant one, present testimony of a medical expert on the subject of mental defect or mental disease and its effect on a particular individual’s comprehension. The jury is entitled to at least that much, if not more assistance in reaching a verdict.