dissenting.
The majority holds that under the rationale of Medley v. N.C. Department of Correction, the defendant in this matter was an agent of the State for purposes of invoking criminal liability under N.C.G.S. §14-27.7(a). If there is a basis for holding an independent contractor criminally liable as an agent of the State under the nondelegable duty theory, Medley does not provide it.
In Medley, our Supreme Court found that a doctor was an agent of the state as a matter of law for whose negligence the State is liable under the Tort Claims Act regardless of whether the doctor was an independent contractor. The Supreme Court found that the State could not absolve itself of responsibility by delegating it to another who may, in fact, have been an independent contractor. In short, the duty imposed on the' State did not depend on whether or not the doctor was in fact an independent contractor because that duty was nondelegable.
The nondelegable duty theory is an exception to the rule of non-liability by a principal for the work of independent contractors. The exception reflects “the policy judgment that certain obligations are of such importance that employers should not be able to escape liability merely by hiring others to perform them.”
Id. at 841, 412 S.E.2d at 657 (citation omitted). As recognized in Medley, the United States Supreme Court has acknowledged “that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.” Id. at 843, 412 S.E.2d at 658 (quoting Deshaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 198, 103 L. Ed. 2d 249, 260 (1989)). Thus, Medley held: Where a principal has a nondelegable duty, one with whom the principal contracts to perform that duty is as a matter of law an agent for purposes of applying the doctrine of respondeat superior.” Id. at 845, 412 S.E.2d at 659 (emphasis supplied).
This is a very different case. The State does not seek to have Defendant declared “an agent for purposes of applying the doctrine of respondeat superior." Indeed, the issue is not whether the State can be absolved of its statutory duty by delegating its responsibility to an independent contractor; rather, the issue is whether one who is an independent contractor may be subjected to criminal liability based on the State’s nondelegable duty. Since the “nondelegable duty theory *107is an exception to the rale of nonliability by a principal for the work of independent contractors,” Id. at 841, 412 S.E.2d at 657, the implications of holding an independent contractor’s criminally liable under the nondelegable duty theory exception would be far reaching. So much so that I am by this dissent affording Defendant a right of appeal to our Supreme Court to resolve this issue. N.C. Gen. Stat. § 7A-30 (1) (2005) (providing an appeal as a matter of right to our Supreme Court “from any decision of the Court of Appeals rendered in a case . .. [i]n which there is a dissent.”).1
Moreover, the issue of whether an agency relationship existed is a question of fact for the jury, if more than one inference can be implied. Hylton v. Koontz, 138 N.C. App. 629, 635, 532 S.E.2d 252, 257 (2000). The trial court recognized this fact; nevertheless, the trial court granted the State’s Motion in Limine. This was error because the contract between Prison Health Services and Mecklenburg County Sheriff’s Office was relevant to the element of agency.
. It should also be noted that under the rules of statutory construction, the rule of lenity “requires us to strictly construe the statute.” State v. Hinton, 361 N.C. 207, 211, 639 S.E.2d 437, 440 (2007). Here, unlike the imposition of liability in civil actions, the State seeks to impose criminal liability, under a statute that does not clearly define the term agent. N.C. Gen. Stat. § 14-27.7(a) (2005).