State v. Kpaeyeh (Lawyers Weekly No. 011-121-16, 13 pp.) (Donna Stroud, J.) Appealed from Guilford County Superior Court (R. Stuart Albright, J.) N.C. App.
Holding: Although there was a long delay (three and a half years) between defendant’s arrest and trial, much of the delay was caused by the changes in defendant’s representation as he was first represented by private appointed counsel, then a public defender, and finally by privately retained counsel. Defendant has failed to show that he was prejudiced by additional time to prepare for trial, and there is no record evidence of any witness whom defendant could have called for trial whose testimony was lost due to the delay.
We find no error in defendant’s convictions of statutory rape and taking indecent liberties with a child. We vacate the order requiring defendant to enroll in satellite-based monitoring.
Although defendant argued that the trial delay hindered his ability to locate potential alibi witnesses, DNA testing confirmed that defendant was the father of the child borne by his wife’s minor niece. An alibi witness normally provides evidence that a defendant was “somewhere else” when the alleged crime occurred. Considering the DNA evidence of paternity, defendant does not explain how an alibi witness might be of assistance in this case.
The delay was not caused by the prosecution’s neglect or willful misconduct, so defendant has failed to show that the delay rises to the level of a violation of his constitutional rights.
An element of taking indecent liberties with a child is that the defendant acted “for the purpose of arousing or gratifying sexual desire.” Defendant argues that evidence of “vaginal penetration” of a victim is, by itself, insufficient to prove a rape was “for the purpose of arousing or gratifying sexual desire.”
In support of this argument, defendant cites a footnote from State v. Weaver: “We also note, however, that recent scientific literature suggests that most rapists do not act ‘for the purpose of arousing or gratifying sexual desire,’ (as the indecent liberties statute requires) but to satisfy a powerful aggressive need.” State v. Weaver, 306 N.C. 629, 636 n.2, 295 S.E.2d 375, 379 n.2 (1982), disapproved of on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). This footnote was used in Weaver as additional explanatory information to the following sentence in the main body of that opinion: “We note that sexual purpose may be inherent in an act of rape.”
The Weaver footnote does not stand for the proposition that the state must always prove something more than vaginal penetration in order to satisfy the “purpose of arousing or gratifying sexual desire” element of taking indecent liberties with a child. This footnote, which is dicta, simply illustrates the fact that sexual desire cannot be assumed to be the motivation behind all sexual assaults.
The trial court here was correct in denying defendant’s motion to dismiss and in allowing the jury to make the determination of whether the evidence of defendant’s repeated sexual assaults of the victim were “for the purpose of arousing or gratifying sexual desire.”
Based on defendant’s statutory rape conviction, the trial court ordered defendant to enroll in satellite-based monitoring for life. However, statutory rape in violation of G.S. § 14-27.7A did not constitute a sexually violent offense for acts committed prior to Dec. 1, 2006.
The acts for which defendant was convicted occurred in 2005. Defendant’s 2005 violation of § 14-27.7A cannot constitute a “sexually violent offense” for the purposes of G.S. § 14-208.6(5) and therefore cannot constitute a “reportable conviction” for the purposes of G.S. §§ 14-208.6(4) and 14-208.40A(a).
No error in part; vacated in part.