State v. Clark, 211 N.C. App. 60 (Apr. 19, 2011)

Applying an elemental analysis, the court determined that first-degree rape under G.S. 14-27.2(a)(1) fits within the definition of an aggravated offense in G.S. 14-208.6(1a). An aggravated offense includes engaging in a sexual act involving vaginal, anal, or oral penetration with a victim (1) of any age through the use of force or the threat of serious violence or (2) who is less than 12 years old. Rape under G.S. 14-27.2(a)(1) cannot satisfy the second prong because it occurs when a person engages in vaginal intercourse with a child under the age of 13, not 12. However, the offense does fall within the first prong of the aggravated offense definition. Such a rape requires proof that a defendant engaged in vaginal intercourse with the victim. This contrasts with G.S. 14-27.4(a)(1), which allows a defendant to be convicted of first-degree sexual offense on the basis of cunnilingus, an act that does not require penetration. Also, vaginal intercourse with a person under the age of 13 necessarily involves the use of force or the threat of serious violence.