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I am the owner of Morelos Law Firm and have been practicing in North Carolina for 10 years. I concentrate mainly in family law but also handle other practices areas, many of which overlap with separation matters such as employment, contracts, collections, foreclosures and general litigation. Most notably, providing both virtual and traditionally-delivered legal services to meet clients' busy schedules and tight budgets. As a partial Virtual Law Office (VLO), communication/ meeting options include but are not limited to: video chat, secure online client portal, instant messaging, text messaging, and unbundled legal services. PLEASE VISIT www.moreloslawfirm.com!

Tuesday, January 21, 2014

Happy New Year.....although, the latest NC Court of Appeals ruling today leaves me very UNHAPPY

The North Carolina Court of Appeals (where virtually all appeals go when disgruntled folks challenge the District and Superior Court outcomes) has already been quite busy in 2014. Today is only the 21st day of the year and already over 30 published opinions have been issued (and about 70 unpublished opinions, so over 100 in total)! 

One opinion that came out today, State v. Stepp (regarding the appeal of a 2011 conviction of first degree murder of a ten-month-old baby), leaves me speechless and bitter about North Carolina's judicial system yet again...

Babies cry. While that can be disruptive, nerve-racking, burdensome, and even just disruptive, we all know it's one of the unfortunate realities of caring for young children. And the younger they are, chances are very high they can't help it or are simply trying to communicate a need for lack of the ability to speak or otherwise properly gesture. 

Well meet stepdad-of-the-year Joshua Andrew Stepp, who apparently suffers from PTSD (Posttraumatic stress disorder) and was hopped up on rum, whiskey, beer, and FOUR Vicodin pills on the night in question. He just couldn't stand the incessant crying of a mere TEN-month-old-baby so he took matters into his own hands.

SO WHAT DID STEPP DO?
Well without trying to sound corny or make light of this grave matter, Stepp seriously took some wrong steps the night his stepdaughter died by his hands.

Summing up his actions and the baby's resulting injuries from that night...

He first put her on the floor in a closet and walked away to see if she would stop crying.  NOPE.  He then grabbed the back of her head and rubbed her face into the carpet to the point of bleeding from 2nd degree rug burns, again trying to make her stop crying. Did she?  NOPE.   And let's all be that fly on the wall and assume that this made the poor infant cry EVEN MORE!

He was nice enough to put some Vaseline on her face, but then he returned to the crazy. After finally deciding to check her diaper only to discover tons of feces (mind you his BAC was apparently about 0.141% at that point), he then violently scrubbed her with baby wipes and engaged in other forceful touching and measures that left her genital and rectal areas TORN, BRUISED, AND BLEEDING. For some reason, the barbaric diaper changing ritual still did NOT make the baby stop crying and at this point she was now screaming too.

He came up with a great solution - he stuffed wet toilet paper into her mouth but to the point that she started gagging. She also suffered hemorrhaging in her brain and retinas from all the shaking he apparently inflicted that night, especially towards the end when she had no strength left anyway to possibly fight back. 

He was also nice enough to call 911 once she was barely breathing, bruised, bleeding, and basically a ragdoll. But yeah, she died 15 min after arriving at Wake Medical Center. WHAT A SURPRISE. 

WHAT HAPPENED AT TRIAL AND WHY THE APPEAL?
Stepp was convicted of 1st degree murder based on the "felony murder rule" which states that if you commit a felony in the process of a killing, it's automatically bumped up to first degree murder. The felony successfully argued by the prosecutor at trial was Sexual Offense in the First Degree, N.C. Gen. Stat. § 14-27.4, where the legal definition of the required "sexual act" includes the "penetration, however slight, by any object into the genital or anal opening of another person's body..." 

However, Stepp argued on appeal that the court erred by not properly instructing the jury because the statutory definition of "sexual act" actually goes on to say "that it shall be an affirmative defense that the penetration was for accepted medical purposes." Sadly enough, Stepp claimed that his rough housing diaper changing session was in fact just his best attempt to thoroughly clean the exorbitant amount of feces. He even had a medical witness [though not expert] who testified he had "frequently seen vaginal and rectal tears caused by parents using force to clean feces, and that [the] 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."

COURT DECISION TODAY...
The North Carolina Court of Appeals, albeit in a 2-1 split decision, actually agreed with the defense's arguments on appeal. Through today's opinion, Stepp has been granted a new trial based on the failure of the lower court to instruct the jury on the affirmative defense. The theory being that had the jurors been told this extra information, it is possible they may not have found that a "sexual act" occurred, and thus no First Degree Sexual Offense, and thus no application of the felony murder rule that led to a conviction of First Degree Murder...to hopefully avoid the specific current sentence of Life without Parole. 

The Court stated in the majority opinion that the language in the aforementioned statutes was meant to protect parents from being charged with sexual offenses for injuries resulting from routine acts related to the health and cleanliness of an infant. And further that the purpose of the Defendant's actions was key, not the manner...which the opinion implied that here, the manner used was just unfortunately negligent, leading to unintentional injuries. 

Oh but if only this had just been a simple diaper change gone horribly wrong! Or by a sober, non-PTSD, person not already known to have problems with impulse control and decision making! Or where the well-intentioned person accidentally grabbed sand paper instead of wipes or simply didn't realize how far they had gently gone into the baby's front or back openings or where the person hadn't engaged in the plethora of other actions before, during, and after the changing of a couple diapers that night...

Even the dissenting Judge, Wanda Bryant, made some excellent points. Namely that it just had to be that when enacting the aforementioned statutes, that the Legislature only meant to protect those who could properly show that the acts in question were in fact done for a purpose accepted/approved by an actual medical doctor or at least accepted in the medical field. Judge Bryant correctly argues that Stepp never actually put forth any evidence, expert testimony, or legal arguments that the specific act of cleaning feces from an infant was in fact an act performed for a "medical purpose."  
Hygiene - YES
Medical purpose/treating a medical condition - NO WAY JOSE

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Well I'm so glad that Mr. Joshua Andrew Stepp got his new trial. Especially so the grieving mother who lost her little angel back in 2008 and already had to relive the horrible accounting at the 2011 trial will get to go through it all over again. And to possibly see her daughter's killer now get convicted of a lesser charge and in turn a possibly lesser sentence. 

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