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Criminal Practice – Sexual Offense – First Impression – Lack of Contact – SBM

State v. Green (Lawyers Weekly No. 13-07-0837, 17 pp.) (Ann Marie Calabria, J.) Appealed from New Hanover County Superior Court (W. Allen Cobb Jr., J.) N.C. App.

Holding: Although defendant did not touch the victim, when he ordered her – at gunpoint – to undress and to insert her own fingers into her vagina, defendant participated in the action by directing the victim. Given that the text of our statutes does not explicitly exclude instances such as the one in this case and the persuasive trend in other courts is to recognize coerced self-penetration as a sexual offense, we hold that the act of forcing a victim to self-penetrate constitutes “engag[ing] in a sexual act … with another person … and against the will of the other person.” G.S. § 14-27.4(a).

We find no error in defendant’s convictions of first-degree burglary, first-degree sexual offense, three counts of armed robbery, and assault with a deadly weapon inflicting serious injury. However, we reverse the trial court’s order requiring defendant to register as a sex offender and submit to lifetime satellite-based monitoring (SBM).

Since our determination of “aggravated offense” triggering lifetime registration and SBM is limited to considering only the elements of the conviction offense, and penetration is not a required element of first-degree sexual offense, defendant was not convicted of an aggravated offense. Therefore, the trial court improperly ordered lifetime sex offender registration and lifetime SBM.

Even if the trial court erred by admitting evidence of another robbery, since the victims here recognized defendant from long acquaintance with him, any such error did not prejudice defendant.


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