Criminal Practice – Rape & Incest – New Trial – Penetration Evidence – Sexual Offense – SBM & Registry – No ‘Aggravated Offense’

State v. Boyett (Lawyers Weekly No. 12-07-1165, 32 pp.) (Cressie H. Thigpen Jr., J.) Appealed from New Hanover County Superior Court (Charles H. Henry, J.) N.C. App.

Holding: Where (1) the victim’s testimony supports the proposition that defendant did penetrate her vagina, (2) her testimony also puts the fact of penetration in doubt, and (3) defendant denies penetration because he could not maintain an erection, the trial court plainly erred by failing to instruct the jury on attempted second-degree rape and attempted incest.

Defendant is entitled to a new trial on his six second-degree rape convictions and his six incest convictions. We find no error in defendant’s 10 second-degree sexual offense convictions. However, we reverse and remand the trial court’s order requiring defendant’s lifetime registration as a sex offender and lifetime enrollment in satellite-based monitoring.

Since a defendant can be convicted of second-degree sexual offense without evidence of penetration, a second-degree sexual offense conviction cannot be an “aggravated offense” within the meaning of G.S. § 14-208.6(4). Defendant’s conviction of second-degree sexual offense cannot serve as the basis for satellite-based monitoring or lifetime sex offender registration. However, the second-degree sexual offense convictions are sufficient to require defendant to register as a sex offender for a period of 30 years.