State v. Stepp, 232 N.C. App. 132

Defendant Joshua Stepp was sentenced to life imprisonment without parole after a jury convicted him of first-degree murder under the felony murder rule for the death of his ten-month-old stepdaughter Cathy.
The jury’s verdict rested on a finding of a sexual offense with a child by an adult, specifically penetrating Cathy’s genital opening with an object, which satisfied the predicate felony for the first-degree murder conviction.
Cathy sustained extensive head, back, rectal, and genital injuries; the state’s medical evidence suggested non-accidental trauma and sexual contact with a child.
Defendant testified to alcohol, PTSD, and impulse-control issues; defense claimed he acted to stop Cathy from crying and that any penetration occurred during diaper changes to clean feces/urine.
The trial court refused Defendant’s requested jury instruction on the affirmative defense of an accepted medical purpose under N.C. Gen. Stat. § 14-27.1(4).
The appellate court held the trial court erred by not instructing on the defense, reversed the conviction for felony first-degree murder, and remanded for a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the jury should have been instructed on the accepted medical purpose defense	Stepp relied on evidence showing cleansing with a wipe as the purpose of penetration.	There was substantial evidence that the penetration was for an accepted medical purpose; thus an instruction was required.	Yes; instruction required for accepted medical purpose defense.
Whether the error was reversible under harmlessness standards	Error could be harmless if not affecting outcome under Mash; but the defense was substantive.	Error was prejudicial because it allowed conviction on admitted conduct without the defense.	Reversible error under either ordinary or constitutional harmlessness standards.
Appropriate remedy for reversible error	State suggested issue of lesser included offenses; but proper remedy is not directing second-degree murder.	New trial appropriate to reassess the verdict with correct instructions.	New trial ordered.

State v. Hudgins, 167 N.C. App. 705 (2005) (affirmative defenses must be instructed when evidence supports them, even without proper request)
State v. Gwynn, 362 N.C. 334 (2000) (lesser-included offenses and context of felony murder review)
State v. Millsaps, 356 N.C. 556 (2002) (limits on how to handle lesser included offenses in felony murder cases)
State v. Bogle, 324 N.C. 190 (1989) (failure to instruct on substantive features constitutes error)