State v. Stepp, 367 N.C. 772 (Jan. 23, 2015)

(per curiam). For reasons stated in the dissenting opinion below, the court reversed the court of appeals. In the decision below, State v. Stepp, __ N.C. App. __, 753 S.E.2d 485 (Jan. 21, 2014), the majority held that the trial court committed reversible error by failing to instruct the jury on an affirmative defense to a felony that was the basis of a felony-murder conviction. The jury convicted the defendant of first-degree felony-murder of a 10-month old child based on an underlying sexual offense felony. The jury’s verdict indicated that it found the defendant guilty of sexual offense based on penetration of the victim’s genital opening with an object. At trial, the defendant admitted that he penetrated the victim’s genital opening with his finger; however, he requested an instruction on the affirmative defense provided by G.S. 14-27.1(4), that the penetration was for “accepted medical purposes,” specifically, to clean feces and urine while changing her diapers. The trial court denied the request. The court of appeals found this to be error, noting that the defendant offered evidence supporting his defense. Specifically, the defendant testified at trial to the relevant facts and his medical expert stated that the victim’s genital opening injuries were consistent with the defendant’s stated purpose. The court of appeals reasoned:

We believe that when the Legislature defined “sexual act” as the penetration of a genital opening with an object, it provided the “accepted medical purposes” defense, in part, to shield a parent – or another charged with the caretaking of an infant – from prosecution for engaging in sexual conduct with a child when caring for the cleanliness and health needs of an infant, including the act of cleaning feces and urine from the genital opening with a wipe during a diaper change. To hold otherwise would create the absurd result that a parent could not penetrate the labia of his infant daughter to clean away feces and urine or to apply cream to treat a diaper rash without committing a Class B1 felony, a consequence that we do not believe the Legislature intended.

(Footnote omitted). The court of appeals added that in this case, expert testimony was not required to establish that the defendant’s conduct constituted an “accepted medical purpose.” The dissenting judge did not believe that there was sufficient evidence that the defendant’s actions fell within the definition of accepted medical purpose and thus concluded that the defendant was not entitled to an instruction on the affirmative defense. The dissenting judge reasoned that for this defense to apply, there must be “some direct testimony that the considered conduct is for a medically accepted purpose” and no such evidence was offered here.

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