State v. Stepp

¶1concurring.

¶2I 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”).

¶3I believe that, in the context of sexual abuse prosecutions, 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 *147drunken, drugged, and enraged Defendant who by his own admission (1) rubs a baby’s face into carpet until she bleeds from second-degree rug bums, (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 tom 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.

¶4I further note the State could have elected to charge Defendant with felony child abuse, as the predicate felony to his 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.

*148(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.

(d) The following definitions apply in this section:

(1) Serious bodily injury. — Bodily injury that creates asubstantial 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.

¶5N.C. Gen. Stat. § 14-318.4 (2011). As noted supra, Defendant admitted that his actions caused second-degree rag bums 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.

¶6dissenting.

¶7The 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.

¶8The majority maintains that it is a matter of common knowledge and common sense that cleaning feces from a body is an act performed *149for 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 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.

¶9“Medical” means “[o]f or relating to the study or practice of medicine.” Amerioan 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).

¶10A 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.

¶11In 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 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.

¶12At 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 *150instruction on the affirmative defense of penetration for an accepted medical purpose.

¶13The majority cites Cornet v. Texas, No. PD-0205-13, 2013 Tex. Crim. App. LEXIS 1654 (Tex. Crim. App. 6 Nov. 2013), and other Texas and Oregon cases1 as persuasive authority for its reasoning that defendant should have been entitled to the affirmative defense instruction. However, while the language of the statutes2 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 puiposes 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.

¶14While 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 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).

¶15Here, the majority states its belief that our legislature provided for the affirmative defense

in part, to shield a parent or other charged with the care-taking 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 *151feces and urine from the genital opening with a wipe during a diaper change.

¶16This 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 tom and bleeding.”

¶17While 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, eveiyday occurrence in the life of a child necessary to maintaining good hygiene, not the treatment of a medical condition.

¶18Therefore, because I do not believe that defendant met his burden of showing that his actions were for an accepted medical purpose, 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.