State v. Stepp

NO. COA13-46

NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Wake County
No. 09 CRS 209725
JOSHUA ANDREW STEPP

Appeal by Defendant from judgment entered 13 September 2011

by Judge W. Osmond Smith III, in Wake County Superior Court. Heard

in the Court of Appeals 14 August 2013.

Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton and Sherri Horner Lawrence, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for Defendant.

DILLON, Judge.

Joshua Andrew Stepp (Defendant) appeals from a judgment

sentencing him to lifetime imprisonment, based on a jury verdict

finding him guilty of first-degree murder, under the felony murder

rule, for the death of his ten-month old stepdaughter Cathy.1 We

conclude Defendant is entitled to a new trial based on the trial

court’s failure to instruct the jury on an affirmative defense to

1 Cathy is a pseudonym.
 -2-
the underlying felony, which supported the first-degree murder

conviction.

I: Background

On the night of 8 November 2009 at approximately 8:50 P.M.,

Defendant placed a 911 call from his Wake County apartment, where

he resided with three other people: Brittany Yarley (“Ms.

Yarley”), his wife of six months; Cathy, Ms. Yarley’s ten-month

old daughter; and Defendant’s four-year old daughter.

A: Physical Evidence at the Scene

Police officers and EMS responded to Defendant’s 911 call and

discovered that Cathy had no pulse and was not breathing. The

responders attempted resuscitation and were able to get a pulse in

the ambulance before Cathy went into cardiac arrest. When Cathy

arrived at Wake Medical Center, she had no vital signs. Cathy’s

pupils were fixed and dilated, indicating brain death; Cathy was

declared dead fifteen minutes after her arrival.

In a trash can at the apartment the officers found a urine-

soaked diaper, three diapers containing baby wipes, feces, and

blood, and empty rum, whiskey, and beer bottles. Blood and feces

were visible in a number of locations throughout the apartment.

Blood was also found on Defendant’s underwear. Defendant smelled

of alcohol.
 -3-
B: Cathy’s Injuries

During the course of the evening, Cathy sustained injuries to

her head and back as well as to her rectal and genital areas. Her

head and back injuries included several bruises, a broad abrasion

on her forehead, lacerations in her mouth, and hemorrhaging in her

brain and retinas. Cathy’s rectal injuries included bruising and

several deep and superficial tears in and around her anal opening.

The injuries to her genital area, which were less severe than

those in her rectal area, included two superficial tears on the

forward portion and a single wider tear at the rear portion.

However, there was no evidence of injuries indicating deep

penetration; and her hymen was intact.

II: The Trial

On 30 November 2009, Defendant was indicted on charges of

first-degree murder and first-degree sexual offense. The matter

came on for trial at the 18 July 2011 criminal session of Wake

County Superior Court.

A: State’s Evidence

At trial, the State offered the testimonies of a number of

medical witnesses, which tended to show as follows: Cathy’s head

injuries were likely caused by multiple blows which were consistent

with non-accidental trauma “caused by an abusive person.” Her
 -4-
rectal injuries were consistent with the introduction of a penis

or other object that penetrated the anus but most likely not by a

single finger wrapped in a wipe. Her genital injuries may have

been caused by a finger or an object, and were also consistent

with an adult attempting, unsuccessfully, to insert his penis into

her vagina.

B: Defense Evidence

Defendant testified in his own behalf and offered the

testimonies of other witnesses, including experts, which tended to

show as follows: Defendant was a member of the Army Reserves,

having resigned from active duty after completing a tour in Iraq.

He suffered from post-traumatic stress disorder and alcohol

dependency. Ms. Yarley was also an Army reservist, who worked at

Fort Bragg.

During the day of 8 November 2009, Defendant took four Vicodin

capsules and drank several shots of liquor and cans of beer. He

spent the afternoon at a sports bar where he continued drinking.

Because Ms. Yarley was scheduled to work the night shift on that

day, Defendant returned to the apartment at 7:25 P.M. to watch the

children for the evening. Upon his return, Cathy was crying and

screaming; and Ms. Yarley noticed that Defendant was lethargic and

stumbling.
 -5-
After Ms. Yarley’s departure, Defendant ate dinner and then

attempted to calm Cathy down by holding her and giving her a

bottle. He then placed Cathy on the floor of his bedroom closet

and walked away to escape the sound of her crying. Defendant

returned to her, grabbed her by the back of the head, and rubbed

her face into the carpet. Cathy’s face became raw and began to

bleed, and she cried even harder. Defendant used a damp washcloth

to dab the blood and then carried Cathy into the living room, put

Vaseline on her face, and laid her down on the living room floor.

This episode occurred at approximately 8:00 P.M., which was the

time that, according to a defense witness, Defendant’s blood

alcohol level likely peaked at 0.141%.

Moments later, Defendant opened Cathy’s diaper and discovered

that it was full of feces. Cathy flailed and screamed as Defendant

tried to clean her with a baby wipe. Defendant wiped aggressively

to get the feces and urine off of Cathy’s body. Cathy began

bleeding from her anus, and Defendant tried to stop the bleeding

with a baby wipe. A few minutes later, Cathy was still bleeding

and had defecated again. Defendant cleaned Cathy again with a

baby wipe and put on a second fresh diaper. However, the second

diaper became soiled, and Defendant cleaned and changed Cathy a

third time.
 -6-
Cathy continued to scream and cry. Defendant then grabbed

some toilet paper, wet it, and put it in Cathy’s mouth in an

attempt to stop the screaming. However, Cathy started gagging.

Defendant was unable to retrieve the toilet paper from Cathy’s

mouth with his fingers; so he picked Cathy up, shook her, and hit

her on her back to try to dislodge the toilet paper. He was then

able to pull the toilet paper out of Cathy’s mouth with his

fingers; however, by this time, Cathy was barely breathing.

Moments later, Cathy stopped breathing, whereupon Defendant made

the 911 call.

The testimonies of Defendant’s witnesses tended to show that

Defendant suffered from substance abuse issues and post-traumatic

stress disorder caused by his military service, conditions which

affected his impulse control and decision making; that on the

evening in question, he had trouble coping with Cathy’s crying;

and that his intentions all along were to stop Cathy from crying.

Regarding Cathy’s injuries, one defense medical witness testified

that he had frequently seen vaginal and rectal tears caused by

parents using force to clean feces, and that Cathy’s injuries to

her rectal and genital areas were consistent with harsh cleaning

with a finger and baby wipes and were not consistent with a sexual

assault.
 -7-
C: Closing Arguments

During closing arguments, the State asserted that the jury

should find Defendant guilty of first-degree murder. The State

contended that Defendant’s acts involved premeditation and

deliberation. Alternatively, the State contended that Defendant

was guilty of first-degree murder based on the felony murder rule,

as the evidence showed that Defendant had either raped or attempted

to rape Cathy, or otherwise committed a sexual offense upon Cathy.

Defendant admitted that he was responsible for Cathy’s death,

but contended that he had not acted with premeditation and

deliberation due to his condition, nor had he sexually assaulted

Cathy in any way; and, therefore, Defendant asserted the jury

should consider returning a guilty verdict for second degree

murder.

D: The Verdict and Judgment

The jury found Defendant guilty of first-degree murder.

Specifically, the verdict sheet submitted to and answered by the

jury stated as follows:

We, the jury, return as our unanimous verdict that the
defendant is:

X Guilty of first degree murder

If you find the defendant guilty of first degree murder,
is it:
 -8-
A. On the basis of malice, premeditation, and
deliberation?
ANSWER: NO

B. Under the first degree felony murder rule in the
perpetration of rape of a child by an adult?
ANSWER: NO

C. Under the first degree felony murder rule in the
attempted perpetration of rape of a child by an adult?
ANSWER: NO

D. Under the first degree felony murder rule in the
perpetration of sexual offense with a child by an adult?
ANSWER: YES

If you find the defendant guilty of first degree murder
under the first degree felony murder rule in the
perpetration of a sexual offense with a child by an
adult, is it:

1. Based upon a sexual act of anal intercourse?
ANSWER: NO

2. Based upon a sexual act of penetrating by an object
into the genital opening of the alleged victim?
ANSWER: YES

3. Based upon a sexual act of penetration by an object
into the anal opening of the alleged victim?
ANSWER: NO

__ Guilty of second degree murder2

__ Not guilty

2 Having convicted Defendant of first-degree murder, the jury did
not reach the question of Defendant’s guilt of second degree
murder.
 -9-
Based on the jury’s verdict, the trial court imposed a sentence of

life imprisonment without parole. From this judgment, Defendant

appeals.

III: Analysis

In Defendant’s sole argument on appeal, he contends the trial

court committed reversible error by failing to instruct the jury

on an affirmative defense to the predicate felony on which the

jury based its first-degree murder conviction. We agree.

As reflected by its responses to the issues presented on the

verdict sheet, the jury convicted Defendant of first-degree murder

based solely on its determination that Defendant was also guilty

of committing a “sexual offense with a child” in violation of N.C.

Gen. Stat. § 14-27.4 (2011), a Class B1 felony which proscribes,

inter alia, the engagement of a “sexual act” with a child by an

adult. Further, the jury concluded that Defendant was guilty of

committing this offense based solely on its determination that

Defendant had committed a “sexual act,” as defined in N.C. Gen.

Stat. § 14-27.1(4) (2011), upon Cathy by penetrating her genital

opening with an object.3

3Though the jury could have found Defendant guilty of first-degree
murder based on either premeditation and deliberation or based on
a finding that Defendant either had vaginal intercourse or
attempted to have vaginal intercourse with Cathy, the jury found
Defendant not guilty based on these theories. Further, the jury
 -10-
N.C. Gen. Stat. § 14-27.1(4) (2011), defines “sexual act,”

in relevant part, as:

. . . the penetration, however slight, by any
object into the genital . . . opening of
another person’s body: provided, that it
shall be an affirmative defense that the
penetration was for accepted medical purposes.

Id. (emphasis added). The “penetration” of the female “genital

opening” is accomplished when the defendant has caused an object

to enter the labia without entering the vagina, see State v.

Bellamy, 172 N.C. App. 649, 658, 617 S.E.2d 81, 88 (2005), disc.

review denied, 360 N.C. 290, 628 S.E.2d 384 (2006); and an “object”

can be, not only an inanimate object, but also a human body part,

such as a finger, see State v. Lucas, 302 N.C. 342, 345, 275 S.E.2d

433, 436 (1981).

At trial, Defendant admitted that he penetrated Cathy’s

genital opening with his finger; however, he requested an

instruction on the affirmative defense provided by N.C. Gen. Stat.

§ 14-27.1(4), that he penetrated her genital opening for “accepted

could have found that Defendant committed a “sexual act” by
penetrating Cathy’s anal opening with either his penis or another
object; however, the jury found Defendant not guilty of felony
sexual offense based on these theories as well. Accordingly, our
review must be limited to the evidence regarding the penetration
of Cathy’s genital opening with an object, and, for the reasons
stated herein, we must view this evidence in the light most
favorable to Defendant.
 -11-
medical purposes.” Defendant based his request on the evidence

tending to show that he penetrated Cathy’s genital opening with

his finger wrapped in a wipe for the purpose of cleaning feces and

urine during the course of changing her diapers and that this

purpose is an “accepted medical purpose.” However, the trial court

denied the request, to which Defendant properly excepted.

A: Defendant was Entitled to the Instruction

We believe that Defendant was entitled to have the jury

instructed on the affirmative defense for “accepted medical

purpose” as provided in N.C. Gen. Stat. § 14-27.1(4).

We have held that “[f]or a jury instruction to be required on

a particular defense, there must be substantial evidence of each

element of the defense when ‘the evidence [is] viewed in the light

most favorable to the defendant.” State v. Hudgins, 167 N.C. App.

705, 711, 606 S.E.2d 443, 446 (2005) (citation and quotation marks

omitted). The burden rests with Defendant to establish the

affirmative defense. State v. Caddell, 287 N.C. 266, 289, 215

S.E.2d 348, 363 (1975) (describing an affirmative defense as “one

in which the defendant says, ‘I did the act charged in the

indictment, but I should not be found guilty of the crime charged

because * * * ”).

In his brief, Defendant points to evidence that, when viewed
 -12-
in the light most favorable to him, supports giving the

instruction. Specifically, he points to his own testimony that he

digitally penetrated Cathy’s genital opening for the purpose of

cleaning feces and urine during diaper changes. He points to the

testimony of his medical expert who stated that Cathy’s injuries

to her genital opening were consistent with Defendant’s stated

purpose. For example, this witness testified as follows:

The source of the [genital] injuries were –
again, by the information that I was provided,
Mr. Stepp in his testimony has admitted to
trying to clean a poopy diaper in a very rough
way using wipes, his fingers, and in a way
that was consistent with this type of trauma.
This was harsh, harsh physical trauma in
cleaning out a diaper. I have seen more cases
than I would like of parents trying to clean
out poopy diapers and how difficult it is to
get stool out of the vaginal and rectal areas
on occasion, and the kind of force that they
have to use sometimes. This was excessive, but
it is consistent with a digital attack, if you
will, on those areas there.

He points to the evidence presented by the State regarding the

soiled diapers and wipes found by the police at the apartment. He

points to the testimonies of the State medical experts that the

injuries to the genital opening were more superficial in nature –

in that there was no evidence of deep penetration or that the hymen

was broken - and could have been caused by fingers.
 -13-
Neither party cites to a case in which a North Carolina court

has construed the phrase “accepted medical purposes” as contained

in N.C. Gen. Stat. § 14-27.1(4). 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 parent4 - 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.

Though not controlling on our resolution of this issue, we do

find decisions from other jurisdictions, involving statutory

language similar to “accepted medical purposes,” instructive. For

instance, the Texas Court of Criminal Appeals, that State’s highest

appellate court for criminal cases, handed down a decision on 6

4 There is no language in N.C. Gen. Stat. § 14-27.1(4) which limits
its application of the defense to acts performed by medical
professionals.
 -14-
November 2013 ordering a new trial for a defendant, convicted of

sexual assaulting a child – where he admitted to digitally

penetrating the genital opening of a three-year old girl for the

purpose of applying medication for a diaper rash - because the

trial court failed to instruct the jury on an affirmative defense

provided in the Texas Penal Code, excusing “conduct [which]

consisted of medical care for the child[.]” Villa v. Texas, 2013

Tex. Crim. App. LEXIS 1655 (2013) (interpreting TEX. PENAL CODE §

22.011(d) (2012)). On the same day it decided Villa, the Texas

Court of Criminal Appeals also handed down Cornet v. Texas, 2013

Tex. Crim. App. LEXIS 1654 (2013), in which it held, as in Villa,

that it was error not to instruct on the “medical care” defense,

where a defendant was convicted of sexual assault based on

digitally penetrating the genital opening of his step-daughter.

However, unlike its holding in Villa, the court concluded that the

error was harmless because the jury in Cornet also convicted the

defendant of a second sexual assault count based on the defendant’s

oral contact with the child’s anus during the same event.5 Id.

(reasoning that it “is inconceivable that the jury would have found

[the defendant] guilty of causing the anus of the complainant to

5 Under TEX. PENAL CODE § 21.011(d), the “medical care” defense is
not available where the conduct involves contact of a genital
opening by a defendant’s mouth. Id.
 -15-
contact his mouth . . . had it believed his claim that he was

providing medical care to the complainant [when he digitally

penetrated her genital opening] during the same event”).

In a case involving the prosecution of a defendant for

digitally penetrating the genital opening of his young step-child

– where the defendant admitted to the conduct, but contended that

he did so for the purpose of applying salve to treat the child’s

diaper rash - the Oregon Court of Appeals held that it was

reversible error for the trial court not to instruct the jury on

an affirmative defense provided by statute which excused such

conduct where the “penetration is part of a medically recognized

treatment[.]” Oregon v. Ketchum, 206 Ore. App. 635, 138 P.3d 860,

review denied, 341 Ore. 450, 143 P.3d 773 (2006) (quoting Or. Rev.

Stat. § 163.412 (2003)). The court ordered a new trial, holding

that the defense was not limited to the conduct of medical

personnel. Id.

We believe the facts of our case are similar to the facts of

Villa and Ketchum – where the courts ordered a new trial – because

Defendant was convicted solely on a finding that he digitally

penetrated Cathy’s genital opening with an object.

In the present case, the State makes a number of arguments in

support of the trial court’s refusal to give the “accepted medical
 -16-
purpose” affirmative defense instruction. First, the State argues

that Defendant failed to meet his evidentiary burden by failing to

produce any evidence to establish that penetrating the genital

opening of an infant to clean out feces and urine is, in fact, an

“accepted medical purpose,” citing State v. Hageman, 307 N.C. 1,

27, 296 S.E.2d 433, 448 (1982) (stating that “in this State, we

have traditionally placed the burden of production and persuasion

on defendants who seek to avail themselves of affirmative

defenses”). In other words, the State argues that though there

was expert testimony suggesting that Defendant penetrated the

genital opening to clean it, none of the experts ever expressly

testified that Defendant’s actions constituted an “accepted

medical purpose.”

We agree that there may be circumstances where a defendant

would be required to offer direct evidence through the testimony

of a medical expert to establish that certain conduct constitutes

an “accepted medical purpose,” rather than allowing a jury to infer

it from the evidence. However, we do not believe that Defendant

was required, in this instance, to offer direct evidence

establishing that penetrating the genital opening of an infant for

the purpose of cleaning the feces and urine during a diaper change

constitutes an “accepted medical purpose.” Our appellate courts
 -17-
have held on a number of occasions that, in the context of a

criminal trial, direct evidence need not be provided to prove a

fact if it otherwise is within the “common knowledge and

experience” of the jury. State v. Packer, 80 N.C. 439, 441-42

(1879). In Packer, the defendant appealed his conviction for

selling an “intoxicating liquor” where the evidence showed that he

sold “port wine,” but the State did not produce evidence that “port

wine” was, in fact, an “intoxicating liquor.” Id. In upholding

the conviction, our Supreme Court held that “the jury could

rightfully as to matters of common knowledge and experience, find

without any testimony as to [whether “port wine” is an

“intoxicating liquor.”] Id.; see also State v. Fields, 201 N.C.

110, 114, 159 S.E. 11, 12 (1931); State v. Payne, 328 N.C. 377,

400, 402 S.E.2d 582, 595 (1991) (stating, in a prosecution for

murder and rape, that “[i]t is common knowledge that homeowners do

not change or replace carpets as frequently as once every several

months”); State v. Becker, 241 N.C. 321, 326, 85 S.E.2d 327, 331

(1954) (stating, in a prosecution for manslaughter where there was

testimony as to the defendant’s driving speed and his distance

from the victim, that “[i]t would seem as a matter of common

knowledge and experience that it would have been a physical

impossibility for the defendant to have stopped his car in so short
 -18-
a distance if at the time in question it was traveling at such a

rate of speed”); State v. Purdie, 93 N.C. App. 269, 280, 377 S.E.2d

789, 795 (1989) (stating, in a prosecution for involuntary

manslaughter, that “it is common knowledge that intoxication

impairs the ability to drive”).

We also believe this evidentiary issue is similar to those in

cases involving professional malpractice, where we have stated

that an exception to the rule requiring expert testimony to

establish the professional standard of care is “where the common

knowledge and experience of the jury is sufficient to evaluate

compliance with a standard of care.” Russell v. DENR, __ N.C.

App. __, __, 742 S.E.2d 329, 333 (2013) (quoting Handex v. Haywood,

168 N.C. App. 1, 11, 607 S.E.2d 25, 31 (2005)). In conclusion,

while there may be circumstances where expert testimony may be

required to establish that certain conduct constitutes an

“accepted medical purpose” pursuant to N.C. Gen. Stat. § 14-

27.1(4), we believe that it is within the common knowledge and

experience of the jury that penetrating the genital opening of an

infant to clean feces and urine during a diaper change is an

“accepted medical purpose.”

The State next argues that the “accepted medical purpose”

defense did not apply to the facts of this particular case.
 -19-
Specifically, the State contends that even if Defendant’s purpose

of cleaning the genital opening was an “accepted medical purpose,”

doing so in a manner that causes injury is not “accepted,” and,

therefore, Defendant was not entitled to the instruction. We

believe the State’s argument is misplaced. First, the plain

language of the statute provides that the “medical purpose,” and

not the manner, must be “accepted.” We do not believe that the

Legislature intended to criminalize, as a Class B1 felony, an

action by a doctor or a parent who penetrates a genital opening of

a child under 13 years of age for an “accepted medical purpose,”

but does so in a negligent manner, thereby unintentionally causing

injuries.6

The State further argues the following:

By defendant’s logic, a robber sticking a gun
in a victim’s vagina or anus to intimidate the
victim would not be a sexual offense; torture
by inserting objects into a person’s genitals
or anus would not be a sexual offense; a
perpetrator forcefully punching and
penetrating a victim’s genitalia to harm and
degrade them would not be guilty of a sexual
offense; a caretaker forcefully penetrating a
child in a rage would not be guilty of a sexual

6 We do not imply that the evidence conclusively establishes that
Defendant did not intend to cause the injuries to Cathy’s genital
opening. This is a matter for a jury to resolve. Rather, we
believe that a jury could reasonably conclude from the evidence -
when taken in the light most favorable to Defendant – that
Defendant unintentionally caused Cathy’s injuries to her genital
opening while cleaning her.
 -20-
offense. By defendant’s analysis, if in any
of these scenarios, the perpetrator merely
claimed to be doing a medical check or
administering medication, the “accepted
medical purpose” instruction must be given
upon request.

However, assuming arguendo any of the foregoing scenarios were

properly before us, it stretches credulity to propose that these

acts could ever be performed for an “accepted medical purpose.”

Further, as discussed above, the evidence relied upon by Defendant

in this case consists of more than his self-serving assertion that

he penetrated Cathy’s genital opening to clean feces. See State

v. Sessoms, __ N.C. App. __, __, 741 S.E.2d 449, 452 (2013)

(holding that the trial court did not commit error by refusing to

instruct the jury on “the defense of others” in the prosecution

for assault with a deadly weapon where the only evidence supporting

the defense was the defendant’s self-serving testimony).

Finally, the State argues that the trial court did not err by

refusing to instruct the jury on the “accepted medical purpose”

defense because the specific instruction tendered by Defendant for

the trial court’s consideration was an incorrect statement of law.

Specifically, the State argues that the “proposed instruction can

be construed to incorrectly place the burden on the State to

disprove the affirmative defense beyond a reasonable doubt.” We

believe this argument is misplaced.
 -21-
Our Supreme Court has stated that “it is the duty of the trial

court to instruct the jury on all of the substantive features of

a case. . . . All defenses arising from the evidence presented

during the trial constitute substantive features of a case and

therefore warrant the trial court’s instruction thereon.” State

v. Loftin, 322 N.C. 375, 381, 368 S.E.2d 613, 617 (1988). This

duty arises even where a defendant fails to request the

instruction. Id.; see also State v. Scanlon, 176 N.C. App. 410,

424, 626 S.E.2d 770, 780 (2006). “Failure to instruct upon all

substantive or material features of the crime charged is error.”

State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989).

In this case, the “accepted medical purpose” defense is a

“substantive feature” of this case; and, therefore, the trial court

was required to give the instruction even if Defendant never made

a request for the instruction. We believe that State v. Hudgins,

167 N.C. App. 705, 606 S.E.2d 443 (2005), is instructive on this

point. In Hudgins, the defendant requested an instruction on the

defense of “necessity” in a DWI prosecution. The Court stated the

general rule that the defense of “necessity” is available to excuse

a person from criminal liability where he acts “to protect life or

limb or health[.]” Id. at 710, 606 S.E.2d at 447. The defendant

provided the trial court with an instruction that was not a correct
 -22-
statement of the law in that “it [further] suggested that the

defense was available for attempts to [protect property from]

damage.” Id. We held that “[a] trial court is not, however,

‘relieved of his duty to give a correct . . . instruction [as to

a defense], there being evidence to support it, merely because

defendant’s request was not altogether correct.” Id. (quoting

State v. White, 288 N.C. 44, 48, 215 S.E.2d 557, 560 (1975)).

Accordingly, we do not need to reach whether Defendant’s tendered

instruction was a correct statement of the law: Since the

instruction pertained to a substantive feature of the case, the

trial court was required to give it.

B: The Error Was Reversible

Having determined that the trial court erred by failing to

instruct the jury on the affirmative defense of “accepted medical

purpose,” we must determine whether the error is reversible

pursuant to N.C. Gen. Stat. § 15A-1443 (2011). Defendant argues

that the error is a constitutional error and, therefore, the burden

is on the State to show that the error was harmless beyond a

reasonable doubt, pursuant to N.C. Gen. Stat. § 15A-1443(b). We

believe that “insofar as the error committed is not one of

constitutional dimension, [D]efendant has met his burden of

satisfying us that had the error in the instruction . . . not been
 -23-
made, there is a reasonable possibility that a different result

would have been obtained at trial[,]” pursuant to N.C. Gen. Stat.

§ 15A-1443(a). State v. Mash, 323 N.C. 339, 349-50, 372 S.E.2d

532, 538-39 (1988). Further, “[i]nsofar as the error is one of

constitutional dimension, the [S]tate has not satisfied us beyond

a reasonable doubt that the error was harmless.” Id. at 350, 372

S.E.2d at 539. Accordingly, we believe that the error is

reversible based on either standard.

Specifically, Defendant admitted to penetrating and causing

the superficial tears to Cathy’s genital opening. In other words,

his defense includes an admission to the elements of the crime of

sexual conduct with a child, that is, he admitted that he digitally

penetrated Cathy’s genital opening. However, Defendant presented

evidence that he committed these acts for the purpose of cleaning

feces and urine away from Cathy while changing her diapers.

In the State’s closing arguments, the prosecutor contended

that “even under the defendant’s version of the facts, penetrated

her with his finger, however slight, . . . . That’s what a sexual

act is, the defendant’s guilty of that charge.” In other words,

the prosecutor implied that the jury could convict Defendant of

felony sexual offense based upon his digital penetration of Cathy’s

genital opening – conduct to which Defendant admitted – even if
 -24-
the jury believed Defendant’s testimony and evidence that he

engaged in the conduct for the purpose of cleaning feces and urine.

Furthermore, the trial court instructed the jury that it was their

duty to return a verdict of guilty of committing a sexual offense

with a child if they found that Defendant had caused the

“penetration, however slight, . . . by an object into [Cathy’s]

genital [] opening[;] that the “object may be an animate or an

inanimate object[;] that Cathy was “a child of under the age of 13

years[;]” and that Defendant was “at least 18 years of age.” The

jury was not given any option in the instruction to, otherwise,

find Defendant not guilty even if they determined that Defendant

engaged in the conduct for an “accepted medical purpose.” Based

on the foregoing, we believe that there is a possibility that the

jury, or some number of jurors, would have been satisfied that

Defendant penetrated Cathy’s genital opening for an “accepted

medical purpose.” Therefore, Defendant’s conviction of felony

first-degree murder must be reversed.

Finally, the State contends that “[i]f this Court allows

[Defendant] relief, judgment should be entered on second-degree

murder as a lesser-included offense of first-degree murder under

both the theory of premeditation and deliberation and felony

murder,” contending that “[s]econd-degree murder is a lesser
 -25-
included offense of felony murder.” The State’s argument based on

the theory of premeditation and deliberation is inapposite, as the

jury did not convict Defendant based on premeditation and

deliberation. As to the State’s argument that second degree murder

is a lesser included offense of felony murder, neither case cited

by the State stands for the proposition that the proper remedy

from this Court, where we find reversible error in the conviction

of felony first-degree murder, is to direct the trial court to

enter judgment on second degree murder. State v. Gwynn, 362 N.C.

334, 338, 661 S.E.2d 706, 708 (2008); State v. Millsaps, 356 N.C.

556, 565, 572 S.E.2d 767, 774 (2002). Rather, Gwynn and Millsaps

were concerned with the trial court’s failure to instruct a jury

on the lesser-included offense of second degree murder in a

prosecution of felony first-degree murder. We note that, in Gwynn,

the Supreme Court stated that voluntary manslaughter is also a

lesser included offense of felony murder. Gwynn, supra.

Therefore, we do not believe that it is the duty of this Court to

invade the province of a jury to determine whether the actions of

Defendant constituted second degree murder or some other lesser-

included offense of felony murder.

IV: Conclusion
 -26-
Defendant inflicted numerous and severe injuries on his ten-

month old stepdaughter Cathy on the evening of 8 November 2009,

which led to her tragic death. There was substantial evidence

presented at trial from which the jury could have convicted

Defendant of first-degree murder based on a number of theories.

However, the jury based its verdict solely on the finding that

Defendant had penetrated Cathy’s genital opening with an object

prior to inflicting the injuries that caused her death. The

evidence was conflicting as to whether Defendant penetrated

Cathy’s genital opening for the sole purpose of cleaning feces and

urine while changing her diapers or whether he ever deviated from

this purpose. However, a jury could infer from the evidence -

when taken in the light most favorable to Defendant - that

Defendant penetrated Cathy’s genital opening, causing superficial

tears thereto, while he was cleaning the feces and urine.

Therefore, Defendant was entitled to the “accepted medical

purpose” instruction pursuant to N.C. Gen. Stat. § 14-27.1(4), a

defense which was a substantive feature of the case,

notwithstanding that a proposed instruction tendered by Defendant

may have contained an incorrect statement of the law. Defendant

properly objected to the trial court’s refusal to give the

instruction. Given that Defendant admitted to the conduct which
 -27-
formed the sole basis by which the jury returned a guilty verdict

of first-degree murder, the trial court’s error by not giving the

affirmative defense instruction by which the jury could have

excused Defendant of his admitted conduct, we believe the error

was prejudicial. Accordingly, we are compelled to reverse the

verdict of the jury convicting Defendant of felony first-degree

murder and remand this case for a new trial.

NEW TRIAL.

Judge STEPHENS concurs in separate opinion.

Judge BRYANT dissents in separate opinion.
 -28-

NO. COA13-46

NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Wake County
No. 09 CRS 209725
JOSHUA ANDREW STEPP

STEPHENS, Judge, concurring.

I am constrained by statute, case law, and the evidence

presented at trial to agree with the majority opinion that we must

grant Defendant a new trial. However, I write separately because

I believe the result we are compelled to reach in this appeal is

not what our General Assembly envisioned or intended when it

provided the affirmative defense of penetration for an “accepted

medical purpose[]” under section 14-27.1. See N.C. Gen. Stat. §

14-27.1 (2011) (defining “[s]exual act” to include “the

penetration, however slight, by any object into the genital or

anal opening of another person’s body: provided, that it shall be

an affirmative defense that the penetration was for accepted

medical purposes”).

I believe that, in the context of sexual abuse prosecutions,
 -29-
our legislature intended this affirmative defense to distinguish

between necessary penetrations required by medical, hygiene, or

other health needs from those which are criminal in nature. I

cannot believe that our legislators intended this affirmative

defense be used as a shield by a drunken, drugged, and enraged

Defendant who by his own admission (1) rubs a baby’s face into

carpet until she bleeds from second-degree rug burns, (2) bruises

her face and head in multiple locations, and then (3) attempts to

“clean” her genital and anal regions with such violence that her

rectum and vagina are left torn and bleeding (all before

asphyxiating the helpless infant by shoving wet toilet paper into

her mouth in an effort to silence her hysterical screams of pain).

I would draw our General Assembly’s attention to the discussion in

the majority opinion regarding the distinction between penetration

for an accepted medical purpose and penetration which occurs for

such a purpose in a medically accepted manner. Surely it should

be a criminal offense, even if not sexual abuse, to penetrate a

baby’s vagina, even in an alleged attempt to clean feces away, if

that action is undertaken in a drunken rage and results in injuries

such as those Cathy suffered in the last moments of her brief life.

I further note the State could have elected to charge

Defendant with felony child abuse, as the predicate felony to his
 -30-
first-degree murder charge, pursuant to various provisions of N.C.

Gen. Stat. § 14-318.4:

(a) A parent or any other person providing
care to or supervision of a child less than 16
years of age who intentionally inflicts any
serious physical injury upon or to the child
or who intentionally commits an assault upon
the child which results in any serious
physical injury to the child is guilty of a
Class E felony . . . .

. . .

(a3) A parent or any other person providing
care to or supervision of a child less than 16
years of age who intentionally inflicts any
serious bodily injury to the child or who
intentionally commits an assault upon the
child which results in any serious bodily
injury to the child, or which results in
permanent or protracted loss or impairment of
any mental or emotional function of the child,
is guilty of a Class C felony.

(a4) A parent or any other person providing
care to or supervision of a child less than 16
years of age whose willful act or grossly
negligent omission in the care of the child
shows a reckless disregard for human life is
guilty of a Class E felony if the act or
omission results in serious bodily injury to
the child.

(a5) A parent or any other person providing
care to or supervision of a child less than 16
years of age whose willful act or grossly
negligent omission in the care of the child
shows a reckless disregard for human life is
guilty of a Class H felony if the act or
omission results in serious physical injury to
the child.
 -31-
. . .

(d) The following definitions apply in this
section:

(1) Serious bodily injury. — Bodily injury
that creates a substantial risk of death or
that causes serious permanent disfigurement,
coma, a permanent or protracted condition that
causes extreme pain, or permanent or
protracted loss or impairment of the function
of any bodily member or organ, or that results
in prolonged hospitalization.

(2) Serious physical injury. — Physical
injury that causes great pain and suffering.
The term includes serious mental injury.

N.C. Gen. Stat. § 14-318.4 (2011). As noted supra, Defendant

admitted that his actions caused second-degree rug burns to Cathy’s

face and deep tears to her anus. These injuries would surely

qualify, at a minimum, as “serious physical injur[ies]” under the

statute. Likewise, Defendant’s actions were plainly willful. I

cannot understand the decision by the State to proceed against

Defendant on charges for sexual offense felonies without also

charging him with felony child abuse, an offense for which

Defendant’s shocking claim of “diaper changing” would have

provided little or no defense.
 -32-
NO. COA13-46

NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Wake County
No. 09 CRS 209725
JOSHUA ANDREW STEPP

BRYANT, Judge, dissenting.

The majority opinion holds that the trial court erred and

grants defendant a new trial, stating that defendant is entitled

to an affirmative defense instruction based upon evidence showing

that defendant’s actions were for an “accepted medical purpose.”

Because I do not believe there was sufficient evidence that

defendant’s actions fell within the definition of accepted medical

purpose, I do not believe defendant was entitled to an instruction

on this affirmative defense; therefore, I respectfully dissent.

The majority maintains that it is a matter of common knowledge

and common sense that cleaning feces from a body is an act

performed for an accepted medical purpose. I would agree that

cleaning feces is necessary for purposes of good hygiene (as is

washing one’s hands and body, and cleaning one’s teeth), and that

failure to clean feces could eventually result in an infection or
 -33-
condition which might require medical attention. But, I would not

agree that, standing alone, defendant’s act of cleaning feces from

the infant should be considered an act that was performed for an

accepted medical purpose.

“Medical” means “[o]f or relating to the study or practice of

medicine.” AMERICAN HERITAGE COLLEGE DICTIONARY 846 (3d ed. 1993).

“Accepted” means “[w]idely encountered, used, or recognized.” Id.

at 8. General Statutes, section 14-27.1, defining “sexual act,”

provides an affirmative defense for penetration of the genital or

anal opening of a person where the act is done for an accepted

medical purpose. N.C. Gen. Stat. § 14-27.1(4).

A common sense reading of General Statutes, section 14-

27.1(4), suggests that the affirmative defense of penetration for

an accepted medical purpose is available only to a defendant who

can show the act was clearly done for a purpose generally approved

or accepted by a physician or was done for purposes accepted in

the medical field or in the practice of medicine.

In the case before us, no one testified that defendant’s

actions were carried out for an accepted medical purpose. Neither

defendant’s medical expert nor any other medical professional

testified that cleaning feces from an infant is an act that is

recognized as having an accepted medical purpose. Had defendant’s
 -34-
medical expert testified that the cleaning was for an accepted

medical purpose, we would be in a different posture. However,

what we do have is evidence, including defendant’s own admission,

which supports a finding that defendant’s conduct caused the

injuries to the infant. There was testimony that vaginal tears

may be common place with harsh cleaning and that the penetration

of the infant’s anus and vagina in an effort to clean off feces

was responsible for the injuries inflicted. Yet, none of the

evidence supports a finding that such conduct was for an accepted

medical purpose.

At trial before the jury, and now before this Court, defendant

asks not only that we accept his theory that his actions in causing

the injuries to the genital and anal area of the child were not

sexual in nature, but that we make the extraordinary leap to

determine defendant’s actions were conducted for an accepted

medical purpose and, thus, within the safe harbor of an affirmative

defense. Because I am unable to make such a leap, I do not believe

the trial court erred in refusing to give an instruction on the

affirmative defense of penetration for an accepted medical

purpose.

The majority cites Cornet v. Texas, No. PD-0205-13, 2013 Tex.

Crim. App. LEXIS 1654 (Tex. Crim. App. 6 Nov. 2013), and other
 -35-
Texas and Oregon cases7 as persuasive authority for its reasoning

that defendant should have been entitled to the affirmative defense

instruction. However, while the language of the statutes8 involved

in those cases is similar in the context of allowing an affirmative

defense to an act of penetration, our statute clearly requires

that acts of penetration be for accepted medical purposes before

allowing the defense. I am not persuaded that the cases

interpreting statutes in Texas and Oregon should inform the result

of the case before us.

While I would not go so far as to posit that non-medical

professionals are not entitled to this defense, I do believe it is

necessary to require some direct testimony that the considered

conduct is for a medically accepted purpose in order to be entitled

7 Villa v. Texas, No. PD-0792-12, 2013 Tex. Crim. App. LEXIS 1655
(Tex. Crim. App. 6 Nov. 2013), and Oregon v. Ketchum, 206 Or. App.
635, 138 P.3d 860 (2006).

8 Tex. Penal Code ' 22.011(d) (2012) (“It is a defense to
prosecution [for sexual assault of a child] that the conduct
consisted of medical care for the child and did not include any
contact between the anus or sexual organ of the child and the
mouth, anus, or sexual organ of the actor or a third party.”), as
quoted in Villa, 2013 Tex. Crim. App. LEXIS, at *12 (emphasis
added); Or. Rev. Stat. ' 163.412(1) (2003) (“[Neither first nor
second degree sexual penetration statute] prohibits a penetration
described in either of those sections when: The penetration is
part of a medically recognized treatment or diagnostic
procedure[.]”), as quoted in Ketchum, 206 Or. App. at 637-38, 138
P.3d at 862 (emphasis suppressed).
 -36-
to the affirmative defense instruction. To this end, I agree with

the language of the dissent in Cornet v. Texas, 359 S.W.3d 217

(Tex. Crim. App. 25 Jan. 2012): “[w]hen asserting a ‘medical care’

defense, the defendant bears the burden of offering some evidence

that his conduct was, in fact, a legitimate, accepted medical

methodology. Before a trial judge is required to instruct on . .

. a defense . . . there must be evidence in the record that raises

. . . that defense as a valid, rational alternative to the charge.”

Id. at 229-30 (Cochran, J., dissenting).

Here, the majority states its belief that our legislature

provided for the affirmative defense

in part, to shield a parent or other 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.

This is a most expansive reading of the affirmative defense portion

of the statute. I must agree with the concurring opinion that the

legislature could not have intended this statute to be used as a

shield by a defendant whose attempt to “clean” the child’s genital

and anal area was performed “with such violence that her rectum

and vagina [was] left torn and bleeding.”
 -37-
While I do not agree that defendant is entitled to an

affirmative defense instruction on penetration for an accepted

medical purpose, I also point out that defendant was not denied

the opportunity to put on a defense. Defendant testified that his

cleaning feces was the reason for the digital insertion into the

child’s genital and rectal area. However, defendant did not put

forth evidence that his actions were for an accepted medical

purpose. There was no testimony from defendant’s medical experts

or any other witnesses to support an instruction to the jury that

the act of cleaning feces from the infant could be considered an

act performed for accepted medical purposes. And, a trial court

is not required to instruct the jury on an affirmative defense for

which there is not sufficient evidence. Perhaps it would be a

closer question had defendant’s request for this affirmative

defense instruction been based on his application of medication to

treat a diaper rash or to treat some other medical condition.

However, this appeal concerns defendant’s actions of wiping feces

from a baby, a common, everyday occurrence in the life of a child

necessary to maintaining good hygiene, not the treatment of a

medical condition.

Therefore, because I do not believe that defendant met his burden

of showing that his actions were for an accepted medical purpose,
 -38-
the trial court was not required to instruct on the requested

affirmative defense. I would find no error in the trial court’s

refusal to so instruct.