dissenting.
I agree with the majority’s decision regarding the admissibility of the hearsay statements. Further, I believe the State presented sufficient evidence at trial to convict defendant of the charges of first-degree sex offense and taking indecent liberties with a minor, in violation of N.C. Gen. Stat. § 14-27.4(a)(l) (Cum. Supp. 1997) and N.C. Gen. Stat. § 14-202.1 (1993), respectively. However, I do not believe the State presented sufficient evidence at trial to prove that defendant engaged in vaginal intercourse with the victim, a required element of first-degree rape under N.C. Gen. Stat. § 14-27.2(a)(l) (Cum. Supp. 1997). Therefore, I would reverse the trial court’s denial of defendant’s motion to dismiss the charge of first-degree rape.
*598At the outset, I note that the majority is correct in asserting that, pursuant to Rule 10(b)(3) of the North Carolina Rules of Appellate Procedure, defendant failed to properly preserve for review the issue of the sufficiency of the evidence by moving for a dismissal at the close of all the evidence. N.C.R. App. P. Rule 10(b)(3) (1998). Nevertheless, I believe that in order to “prevent manifest injustice” to defendant, this Court has the discretionary authority pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure to review the facts of this case to determine whether sufficient evidence existed, regardless of whether defendant moved for a dismissal at the close of all the evidence. N.C.R. App. P. Rule 2 (1998); see State v. Stocks, 319 N.C. 437, 355 S.E.2d 492 (1987) (where our Supreme Court stated that “[w]hile we thus are not compelled to do so, we have nevertheless reviewed the evidence in our discretion . . ..” Id. at 439, 355 S.E.2d at 493 (citing State v. Fikes, 270 N.C. 780, 781, 155 S.E.2d 277, 278 (1967)); see also State v. Jordan, 321 N.C. 714, 717, 365 S.E.2d 617, 619 (1988).
In ruling on a motion to dismiss, the trial court must determine whether substantial evidence exists as to each essential element of the charged offense and that the defendant is the perpetrator of that offense. State v. Summers, 92 N.C. App. 453, 455, 374 S.E.2d 631, 633 (1988). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted).
In order for the State to meet its burden of proving defendant guilty of first-degree rape pursuant to N.C. Gen. Stat. § 14-27.2(a)(l), it must demonstrate by substantial evidence that defendant engaged in “vaginal intercourse” with the victim, among other things. Id. at 456, 374 S.E.2d at 633. Vaginal intercourse is defined as “the slightest penetration of the female sex organ by the male sex organ.” Id. In this case, contrary to the majority’s assertion, I do not feel the State’s evidence rose to the level of showing by substantial evidence even the slightest vaginal penetration of the victim by defendant’s male sex organ.
At trial, one of the State’s witnesses, Ms. Roswell-Flick, a clinical psychologist, related a conversation she had with the four-year-old victim on 2 January 1996, when she was investigating allegations of sexual abuse by defendant. During the course of her discussion with the victim, Ms. Roswell-Flick used anatomically correct male and female dolls to assist the victim in describing exactly what occurred *599between she and defendant. However, as the trial court noted, the victim could not distinguish between the two dolls, although she could identify the specific parts of the body.
Ms. Roswell-Flick began asking the four-year-old victim if anyone had ever touched her vagina, at which point the following conversation occurred:
I said, “Does anyone ever touch you down here?” indicating the vagina of the girl doll, and she said, “Yeah, [defendant] does.” . . . I said, “What did he do?” and she said, “He put his hand down there.” I said, “Did he put it on the inside or the outside of that part?” and she pointed directly to the vagina. I said, “How did that feel?” and she said, “It hurt.” I said, “Did [defendant] kiss you or lick you any place?” and she said, “He licked me.” I said, “Where did he lick you?” and she pointed to the vagina of the doll. I said, “Did [defendant] do anything else?” and she said, “No.”
Thereafter, Ms. Roswell-Flick asked the victim if defendant had ever touched her with his male sex organ, and the following conversation occurred:
“Did you ever see [defendant’s male sex organ]?” ...[,] and she said, “Yeah.” I said, “What did he do?” [a]nd she said, “He took it off.” I said, “Did he ever touch you with that part?” indicating the [male sex organ], and she said, “Yeah.” I said, “Where did he put it?” and she pointed directly between her own legs to her vagina. I said, “Did he put it on the inside or the outside?” and she said, “The inside.”
Based on this hearsay testimony, the majority states that “[t]here was trial testimony concerning evidence of penetration by defendant.” I disagree.
Ms. Roswéll-Flick’s testimony regarding her conversation with the four-year-old victim indicates that the victim’s recollection of the events on or about 16 December 1995 is vague and confused as to the issue of vaginal intercourse. Not only is the testimony hard to follow, but there is also no indication as to when, where or how defendant engaged in vaginal intercourse with the victim. Further, there is absolutely no medical evidence of vaginal intercourse, nor is there any corroborating evidence to support such a conclusion. However, even if a slight inference of defendant’s guilt could be gleaned from this testimony, it nevertheless fails to rise to the level of substantial evidence.
*600In criminal cases of this magnitude, a trial court, or an appellate court, should not infer from this scant hearsay testimony that defendant engaged in vaginal intercourse with the victim. Two considerations should prevent us from drawing such an inference. First, in recognition of the heavy burden placed upon the State in criminal cases, we should not “draw inferences against the accused from what must be characterized as vague and ambiguous testimony”; and second, there is absolutely no other evidence in the record to show that defendant engaged in vaginal intercourse with the victim. State v. Ferguson, 450 N.E.2d 265, 271-272 (Ohio 1983).
As to the first consideration, we must remember that it is the State’s job to prove by substantial evidence each element of the crime charged, and that the defendant is the perpetrator of the offense. State v. Summers, 92 N.C. App. at 455, 374 S.E.2d at 633. Therefore, as the Ohio Supreme Court recognized in State v. Ferguson:
[A]s unpleasant an ordeal as it might be, we must reinforce the need to have the events described with sufficient clarity to establish the offender’s guilt beyond a reasonable doubt. To this end, the prosecutor must be aware of the elements necessary to prove the state’s case and to elicit testimony as to those elements as tactfully as possible.
Id. at 272 n.6. This being the case, it was the State’s duty to elicit testimony from its witnesses that established by substantial evidence that defendant vaginally penetrated the victim with his male sex organ.
In this case, other than Ms. Roswell-Flick’s hearsay testimony of the four-year-old victim, there was absolutely no other evidence presented by the State which showed any type of vaginal penetration by the male sex organ, even slight penetration. The victim never mentioned to any of the investigating officers or her mother when she spoke with them on 16 December 1995, or at any other time, that defendant penetrated her vagina with his male sex organ. Further, since she was unable to testify due to her young age, the only evidence offered at trial by the State was the hearsay testimony from the other witnesses.
In addition, there is absolutely no medical evidence of vaginal penetration of the victim by the defendant’s male sex organ. Dr. Everett, a pediatrician specializing in child sex abuse cases, testified that an external genital exam was performed on the victim on 16 *601December 1995, and that no “obvious lesions or signs of trauma” were discovered. Further, she testified that her physical exam of the victim “was consistent with ... a history of genital fondling, digital [finger] vaginal penetration and cunnilingus,” but not of vaginal penetration by the male sex organ.
In summary, the only evidence presented by the State which tended to show defendant engaged in vaginal intercourse with the victim was the hearsay testimony of Ms. Roswell-Flick, in which she described a conversation she had with the four-year-old victim. After a careful review of the record, and given the heavy burden placed upon the State in criminal cases to produce substantial evidence of each element of the crime charged, I believe there was insufficient evidence that defendant engaged in vaginal intercourse with the victim. Therefore, I would reverse defendant’s conviction on the charge of first-degree rape.