IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-13
Filed: 19 March 2019
Wake County, No. 14 CRS 220638
STATE OF NORTH CAROLINA
v.
JONATHAN LOPEZ
Appeal by Defendant from judgment and order entered 30 March 2017 by
Judge Reuben F. Young in Superior Court, Wake County. Heard in the Court of
Appeals 14 January 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Matthew Tulchin, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
Gomez and Assistant Appellate Defender James R. Grant, for Defendant.
McGEE, Chief Judge.
Jonathan Lopez (“Defendant”) appeals from judgment entered after a jury
found him guilty of second-degree rape. Defendant argues the trial court erred by (1)
denying his motion to dismiss the charge for insufficient evidence, (2) excluding
testimony of his expert witness, and (3) providing inadequate jury instructions.
Defendant further contends the cumulative effect of these errors deprived him of a
fair trial. We hold the trial court did not err in denying Defendant’s motion to
dismiss, did not prejudicially err in excluding Defendant’s expert witness, and did not
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Opinion of the Court
err in its instructions to the jury. As we hold the trial court did not commit prejudicial
error, we hold that Defendant is not entitled to a reversal based on cumulative error.
Defendant also appeals from the trial court’s order imposing lifetime satellite-
based monitoring (“SBM”). Defendant argues the trial court erred in ordering
lifetime SBM because the State failed to present evidence that lifetime SBM of
Defendant was a reasonable Fourth Amendment search. We hold that the trial court
erred in ordering lifetime SBM, and reverse the trial court’s order.
I. Factual & Procedural History
Miranda,1 a college student studying business administration in Virginia,
traveled to Raleigh with her friend, Perla, on 4 July 2014 to attend her godmother’s
vow renewal the following day. At the time, Miranda was twenty-two years old and
had been in a relationship with her boyfriend for four-and-a-half years.
In the days leading up to the vow renewal, Miranda exchanged text messages
with Defendant, a close family friend who lived in Raleigh. Miranda and Defendant
agreed to meet while in Raleigh. Miranda considered Defendant “even as a brother
to [her].” Miranda testified that, on one occasion when Defendant and Miranda were
in their early teens, they kissed during a game of “truth or dare.” Miranda testified
that, on another occasion when they were approximately sixteen years old, Defendant
attempted to “hit on” Miranda, and she “blew it off.” However, with the exception of
1 We adopt the pseudonym “Miranda” used in the briefs to protect the identity of Miranda.
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those two instances, Miranda and Defendant never engaged in a romantic
relationship.
The night before the vow renewal, Miranda and Perla drove to Defendant’s
apartment and, on their drive, they drank mixed drinks consisting of vodka and juice.
At approximately 6:00 p.m., they arrived at Defendant’s apartment (hereafter at
times, “the apartment”), which Defendant shared with Jose Oswaldo Palacios-
Martinez (“Lenny”). At the apartment, Miranda drank a Mike’s Hard Lemonade, a
Fireball shot, and a mixed liquor drink. A while after arriving at the apartment,
Miranda, Perla, Defendant, and Lenny decided to go to a club. Lenny drove the group
to the club.
At the club, Miranda and Perla separated from Defendant and Lenny, and each
had another drink, and danced with each other. In the subsequent hours, Miranda
drank a “Blue Motorcycle” – purchased by Defendant – and one and one-half shots of
tequila. Miranda appeared drunk to Perla. Miranda testified that she had blurry
vision, began to stumble, and was unable to send a text message. Miranda told Perla
that she wanted to leave the club so she could go to sleep. After midnight, Defendant,
Lenny, Perla, and Miranda left the club, and Miranda threw up in the parking lot of
the club. Miranda texted her boyfriend, but was unable to recall any other detail
from the drive back to Defendant’s apartment.
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Upon arriving back at Defendant’s apartment building, Miranda went up the
stairs to Defendant’s third floor apartment, holding onto the stair rail and wearing
one shoe, and Defendant followed. Perla and Lenny remained in the parking lot, and
Perla began to throw up. Lenny waited with Perla and, once Perla felt better, Lenny
helped her up the stairs. Perla then fell asleep in the living room of the apartment.
Miranda testified she awoke the following morning at 8:00 a.m. and felt
another person’s leg touching her leg. Miranda realized Defendant was in bed next
to her. Miranda’s shirt was off, her skirt was pushed up to her waist, and her
underwear was on the bed. Miranda testified that her vagina felt sore, as if she had
had sex. Defendant woke up and asked Miranda if she was okay. Miranda ignored
Defendant, grabbed her phone, and ran out of Defendant’s bedroom. Miranda
testified she had a blurry memory of pushing or kicking someone off of her while she
was sleeping.
Perla testified she awoke in the morning to hear Miranda frantically asking
why she had been left alone with Defendant. Miranda then walked out of the
apartment to her car where she began crying. Perla called Miranda’s cell phone, and
Miranda told Perla that she thought “something had happened.” Perla then
questioned Defendant about what had happened the previous night, and Defendant
assured Perla that nothing had happened. Miranda sent Perla a text message stating
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she wanted to leave, and she returned to the apartment to retrieve her things.
Defendant asked Miranda again if she was okay and offered for her to use his shower.
Miranda and Perla left Defendant’s apartment and drove to a family friend’s
house. Perla testified that Miranda appeared “frazzled” in the car. Miranda told
Perla that she woke up without her underwear, and Perla convinced Miranda to
return to Defendant’s apartment to confront him.
Miranda and Perla drove to Defendant’s apartment where, again, Defendant
denied having sex with Miranda. Miranda explained to Defendant that her vagina
felt sore. Defendant asked to speak with Miranda privately. Once in private,
Defendant told Miranda that when he entered his bedroom and saw Miranda in his
bed with her skirt pulled up to her waist, he instinctively “wanted to do something.”
He explained that Miranda kicked and pushed him off, so he left her alone.
Miranda and Perla decided to leave Defendant’s apartment. As they walked
out of the apartment, Defendant invited Miranda and Perla to a party that he was
hosting that night and joked that he would lock Miranda and Perla in his room to
assure nothing bad happened to them. Miranda and Perla drove back to Virginia.
Perla testified that on the drive, Miranda appeared “upset and confused and didn’t
really know where to go or what to do after that.”
The following afternoon, Perla called Miranda. Perla recommended Miranda
seek medical attention and complete a rape kit, and they agreed to meet at a hospital
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in Woodbridge, Virginia. After waiting hours in the emergency room without being
seen, Perla and Miranda drove to a pharmacy to purchase Plan B.
Miranda called Defendant on speakerphone from the car and again asked what
had happened on the night of 4 July. Defendant denied anything happened. Miranda
explained that she was parked in front of a hospital, where the doctors and nurses
would be able to ascertain the last time she had sex. Miranda threatened that, if
Defendant had lied to her and her rape kit revealed she had had sexual intercourse,
she would go to the police. Defendant inquired whether Miranda was alone, and
Miranda said yes. Defendant then admitted he had sex with Miranda. Miranda
began to cry and told Defendant she had not given him permission to touch her.
Defendant said, “it’s me. Why would you feel disgusted?” Defendant urged Miranda
not to contact the police. After they hung up the phone, Defendant repeatedly called
and texted Miranda saying, “we need to talk.” Miranda responded one time, saying:
“How could you do this to me? I trusted you. You were considered my friend.”
After speaking with Defendant, Miranda and Perla returned to the emergency
room, and Miranda completed a rape kit. An off-duty security guard interviewed
Miranda, filled out a police information report, and had Miranda and Perla each fill
out written statements. The case was dispatched to an officer of the Raleigh Police
Department on 7 July 2014. The officer contacted Miranda, received her oral
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statement, and prepared a report, which he passed on to the Raleigh Police
Department’s Detective Division.
Detective Corinne McCall (“Detective McCall”) of the Raleigh Police
Department’s Special Victims Unit testified that she was assigned the case on 8 July
2014. Detective McCall contacted Miranda by phone and asked Miranda “to tell [her]
what had happened.” Detective McCall’s testimony regarding Miranda’s story to her
was consistent with Miranda’s testimony at trial. Detective McCall testified that
Miranda’s story remained consistent throughout the course of the investigation.
Detective McCall testified she interviewed Defendant on 25 July 2014, and
recorded the interview. Initially, Defendant told Detective McCall that, on 5 July,
when Miranda confronted him at his apartment, he told Miranda that the two had
engaged in sexual intercourse the previous night. Defendant also told Detective
McCall that he had not talked to Miranda since that day in his apartment when he
disclosed to her that they had had sex. Defendant later admitted that he actually
first told Miranda that they had had sex during a phone conversation on 6 July 2014.
Detective McCall received Miranda’s phone records, which revealed that Defendant
lied about not contacting Miranda.
In August 2014, Miranda returned to school. However, she struggled to
concentrate in class and had periodic emotional outbursts that required her to leave
campus. Although she only had six months left to graduate, she dropped out of school
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approximately three weeks later. Perla testified that, prior to 4 July 2014, Miranda
had been “a very upbeat and a very happy girl”; however, after that date, “[Miranda]
kind of became very depressed.”
In 2015, Miranda was transported to the hospital after attempting suicide by
cutting her wrists. Miranda attempted suicide a second time by overdosing on pills
and was again transported to the hospital. Miranda subsequently started treatment
with a therapist once a week and was prescribed antidepressants and sleep
medication.
At trial, Defendant testified on his own behalf. He described his relationship
with Miranda as “friends with benefits.” Defendant testified that, on one occasion,
during a game of “spin the bottle,” Miranda kissed him and danced on top of him and,
on another occasion, Miranda touched his penis.
Defendant testified that on 4 July 2014, he went to a club with Miranda, Perla,
and Lenny. Defendant could not recall how much alcohol he consumed at the club.
Defendant explained he could not recall any detail about leaving the club or about
the drive back to the apartment because of the three year lapse.
Defendant further testified that, after returning from the club on the night of
4 July, Defendant went out on his balcony and smoked a cigarette. Defendant entered
his room and saw Miranda sleeping in his bed. Defendant told Miranda to move, as
she was lying on his side of the bed. Miranda woke up and moved over. About thirty
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minutes later, Defendant’s leg touched Miranda’s leg. Defendant put his hand on
Miranda’s back, and Miranda said, “yes.” Defendant then said, “let’s f---,” and they
had sex. The following morning, at approximately 7:00 a.m., Defendant and Miranda
had sex for the second time. Miranda then went to the bathroom and left Defendant’s
apartment.
Defendant testified that after Miranda came back in the apartment, Miranda
and Perla entered Defendant’s room, and asked Defendant whether he had engaged
in sex with Miranda the previous night. Defendant denied anything happened.
Defendant testified: “I cannot tell you why at that moment I opted not to tell her.”
Defendant testified when Miranda and Perla returned to his apartment later that
afternoon and again asked him what had transpired, Defendant denied anything
happened, because he “just didn’t know what to do.”
Defendant was indicted on 20 March 2017 for one count of second-degree rape.
The case came on for hearing 27 March 2017. The jury found Defendant guilty of
second-degree rape on 30 March 2017. Defendant was sentenced to 73-148 months’
imprisonment. Defendant was ordered to register as a sex offender for his lifetime
and to enroll in an SBM program. Defendant appeals.
II. Appellate Jurisdiction and Writs of Certiorari
As an initial matter, this Court’s jurisdiction must be determined. Defendant
has filed two petitions for writ of certiorari; we address each in turn.
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Defendant was convicted of second-degree rape and sentenced to 73-148
months’ imprisonment on 30 March 2017. After receiving the jury verdict, but prior
to the pronouncement of the judgment, the defense attorney gave oral notice of appeal
and asked for the appointment of the Appellate Defender. The trial court noted the
request on the record and dismissed the jury. When the jury returned, the trial court
accepted the verdict of the jury and ordered that it be recorded as a final judgment.
Subsequently, appellate entries were filed, and the Appellate Defender was appointed
to represent Defendant. Defense counsel filed the record on appeal in this Court on
9 January 2018. Defendant filed a petition for writ of certiorari, pursuant to Rule
21(a) of the North Carolina Rules of Appellate Procedure on 20 February 2018. See
N.C. R. App. P. 21(a) (2018).
Rule 4 of the North Carolina Rules of Appellate Procedure provides that notice
of appeal from a criminal action may be taken by: “(1) giving oral notice of appeal at
trial, or (2) filing notice of appeal with the clerk of superior court and serving copies
thereof upon all adverse parties within fourteen days after entry of the judgment[.]”
N.C. R. App. P. 4(a) (2018). In the present case, defense counsel prematurely entered
an oral notice of appeal before entry of the final judgment, in violation of Rule 4.
Therefore, “[w]hile this Court cannot hear [D]efendant’s direct appeal, it does have
the discretion to consider the matter by granting a petition for writ of certiorari.”
State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320 (2005). In our discretion,
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we allow Defendant’s first petition for writ of certiorari in order to reach the merits
of his appeal.
At the sentencing hearing, upon finding that Defendant had committed an
aggravated offense, the trial court ordered Defendant to enroll in SBM. Defense
counsel gave oral notice of appeal, but did not file written notice of appeal. Defendant
also filed a second petition for writ of certiorari from the SBM order on 11 May 2018.
A defendant must file a written notice of appeal from an SBM order pursuant
to Rule 3 of the Rules of Appellate Procedure because of the civil nature of SBM
proceedings. N.C. R. App. P. 3 (2018); State v. Brooks, 204 N.C. App. 193, 194-95,
693 S.E.2d 204, 206 (2010) (“In light of our decisions interpreting an SBM hearing as
not being a criminal trial or proceeding for purposes of appeal, we must hold that oral
notice pursuant to N.C.R. App. P. 4(a)(1) is insufficient to confer jurisdiction on this
Court. Instead, a defendant must give notice of appeal pursuant to N.C.R. App. P.
3(a) as is proper ‘in a civil action or special proceeding.’”). Rule 3 provides that a
party must enter notice of appeal from a civil action
(a) by filing notice of appeal with the clerk of superior court
and serving copies thereof upon all other parties . . .
....
(c) . . . .
(1) within thirty days after entry of judgment if the
party has been served with a copy of the judgment
within the three-day period prescribed by Rule 58 of
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the Rules of Civil Procedure; or
(2) within thirty days after service upon the party of
a copy of the judgment if service was not made
within that three-day period[.]
N.C. R. App. P. 3(a), (c). In the present case, Defendant did not file a written notice
of appeal in compliance with Rule 3. However, in our discretion, we allow Defendant’s
second petition for writ of certiorari.
III. Analysis
A. Insufficiency of the Evidence
Defendant argues that the trial court erred in denying his motion to dismiss
for insufficiency of the evidence. Specifically, Defendant argues there was insufficient
evidence showing that Miranda was “physically helpless” during sexual intercourse.
We disagree.
A motion to dismiss for insufficiency of the evidence is reviewed de novo. State
v. English, 241 N.C. App. 98, 104, 772 S.E.2d 740, 744 (2015). “‘Upon [a] defendant’s
motion for dismissal, the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator of such offense. If so,
the motion is properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,
455 (2000) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).
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A person is guilty of second-degree forcible rape if the person engages in
vaginal intercourse with another person:
(1) By force and against the will of the other person; or
(2) Who has a mental disability or who is mentally
incapacitated or physically helpless, and the person
performing the act knows or should reasonably know the
other person has a mental disability or is mentally
incapacitated or physically helpless.
N.C. Gen. Stat. § 14-27.22(a) (2017).2 “Physically helpless” is defined as either “[a]
victim who is unconscious” or “[a] victim who is physically unable to resist an act of
vaginal intercourse or a sexual act or communicate unwillingness to submit to an act
of vaginal intercourse or a sexual act.” N.C. Gen. Stat. § 14-27.20(3) (2017).
Defendant argues Miranda’s lack of memory is not affirmative evidence that
she was unconscious, physically unable to resist intercourse or a sexual act, or unable
to communicate unwillingness to intercourse or a sexual act. Defendant contends
there was insufficient evidence that Miranda was physically helpless because the only
evidence presented regarding consent was Defendant’s statement to police and his
testimony that Miranda consented to intercourse on two separate occasions, and that
the State presented no evidence that Miranda did not consent.
The State presented evidence that Miranda consumed sizable portions of
alcohol over an extended period of time, was physically ill in the parking lot of the
2 Defendant was charged under N.C. Gen. Stat. § 14-27.3(a) (2013). The statute has since
been recodified at N.C.G.S. § 14-27.22. 2015 N.C. Sess. Law ch. 181, § 4(a).
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club, and was unable to remember anything after leaving the club. When Miranda
returned to Defendant’s apartment, she stumbled up the stairs and had to hold on to
the stair rail. Miranda woke up the following morning with her skirt pulled up to her
waist, her shirt off, and her underwear on the bed. Miranda’s vagina was sore, and
she had a blurry memory of pushing someone off her. Miranda never had a prior
sexual relationship with Defendant. Moreover, Defendant’s actions following the
incident — his adamant initial denial that anything of a sexual nature occurred and
subsequent contradictory admissions — tend to indicate Defendant knew of his
wrongdoings, i.e., Miranda was physically helpless at the time of the rape. Viewed in
the light most favorable to the State, and drawing all reasonable inferences in favor
of the State, there was sufficient evidence presented that Miranda was physically
unable to resist intercourse or to communicate her unwillingness to submit to
intercourse. Thus, Defendant’s motion to dismiss was properly denied.
B. Expert Testimony
Defendant argues that, in refusing to allow the testimony of his proposed
expert who would have testified as to an intoxicated person’s ability to engage in
volitional activities and not have any memory after the fact, the trial court abused its
discretion, which amounted to prejudicial error. We disagree.
“We review a trial court’s admission of expert testimony for abuse of
discretion.” State v. Babich, ___ N.C. App. ___, ___, 797 S.E.2d 359, 361 (2017). “A
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trial court may be reversed for abuse of discretion only upon a showing that its ruling
was manifestly unsupported by reason and could not have been the result of a
reasoned decision.” State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).
North Carolina Rule of Evidence 702 controls the admissibility of expert
testimony and states:
(a) If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion, or otherwise, if all
of the following apply:
(1) The testimony is based upon sufficient facts or
data.
(2) The testimony is the product of reliable principles
and methods.
(3) The witness has applied the principles and
methods reliably to the facts of the case.
N.C. Gen. Stat. § 8C-1, Rule 702(a) (2017).
“Even when an abuse of discretion occurs, a defendant is not entitled to a new
trial unless the error was prejudicial.” State v. Mendoza, ___ N.C. App. ___, ___, 794
S.E.2d 828, 834 (2016). The erroneous exclusion of expert testimony is prejudicial
“when there is a reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial out of which the
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appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2017). Defendant bears the burden of
demonstrating prejudice. N.C.G.S. § 15A-1443(a).
At trial, defense counsel attempted to tender Dr. Wilkie Wilson (“Dr. Wilson”),
a neuropharmacologist, as an expert witness. During voir dire, Dr. Wilson testified
that one of his areas of expertise was alcohol and its effect on memory. Dr. Wilson
explained that he would testify “about what’s possible and what’s, in fact, very, very
likely and [sic] when one drinks a lot of alcohol.” Dr. Wilson proffered his opinion
“that someone who is having a blackout might not be physically helpless.” The State
objected to Dr. Wilson’s testimony, arguing that Dr. Wilson’s inability to demonstrate
more than “maybe” possibilities meant his testimony would not be helpful to the jury.
The trial court then sustained the State’s objection, explaining that “this doctor will
not assist the trier of fact to understand the evidence or to determine a fact in issue
in this case[.]”
The State did not present evidence of Miranda’s lack of memory as affirmative
evidence that she was physically helpless at the time of the sexual encounter. Dr.
Wilson’s testimony was to the effect that an intoxicated person can engage in
volitional activities and not remember. Because the State’s theory of physical
helplessness did not rest on Miranda’s lack of memory, Dr. Wilson’s testimony would
not have helped the jury “determine a fact in issue in this case.” Indeed, the State
presented evidence that Miranda engaged in volitional activities when she was
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intoxicated, such as walking up the stairs to Defendant’s apartment, although
Miranda had no memory of that action. Therefore, the trial court did not abuse its
discretion in excluding Dr. Wilson’s testimony.
Even assuming, arguendo, that the trial court erred in excluding Dr. Wilson’s
testimony because it was not in the common knowledge of the jurors, this error did
not prejudice Defendant. The State presented evidence of physical helplessness in
the form of testimony regarding Miranda’s consumption of large amounts of alcohol
prior to, and after, arriving at the club; her blurry memory of pushing someone off
her; and Defendant’s deception and lies after the encounter. Therefore, the State
presented overwhelming evidence of Miranda’s physical helplessness, and Defendant
has not met his burden of showing that there was “a reasonable possibility that, had
the error in question not been committed, a different result would have been reached
at the trial[.]” N.C.G.S. § 15A-1443(a).
C. Jury Instruction
Defendant argues the trial court committed plain error in failing to instruct
the jury that lack of consent was an element of rape of a physically helpless person.
We disagree.
The trial court instructed the jury in accordance with the pattern jury
instructions for rape of a physically helpless person, N.C.P.I.—Crim. 207.25. The
trial court instructed the jury that
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the State must prove three things beyond a reasonable
doubt: First, that the defendant engaged in vaginal
intercourse with the victim. Vaginal intercourse is
penetration, however slight, of the female sex organ by the
male sex organ. The actual emission of semen is not
necessary. Second, that the victim was physically helpless.
A person is physically helpless if the person is unconscious,
physically unable to resist an act of vaginal intercourse,
physically unable to communicate unwillingness to submit
to an act of vaginal intercourse, or physically unable to
resist a sexual act. And, third, that the defendant knew or
should reasonably have known that the victim was
physically helpless. If you find from the evidence beyond a
reasonable doubt that on or about the alleged date the
defendant engaged in vaginal intercourse with the victim
and at that time the victim was so physically unable to
resist an act of vaginal intercourse, to communicate
unwillingness to submit to an act of vaginal intercourse, or
resist a sexual act as to be physically helpless, and that the
defendant knew or should reasonably have known that the
victim was physically helpless, it would be your duty to
return a verdict of guilty. If you do not so find or have a
reasonable doubt about one or more of these things, it
would be your duty to return a verdict of not guilty.
Defense counsel did not object to the jury instructions at trial or at the charge
conference. It is well established that, when no objection is made to jury instructions,
this Court’s review is limited to the plain error standard.
“In order to rise to the level of plain error, the error in the trial court’s
instructions must be so fundamental that (i) absent the error, the jury probably would
have reached a different verdict; or (ii) the error would constitute a miscarriage of
justice if not corrected.” State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531
(1997). “It is the rare case in which an improper instruction will justify reversal of a
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criminal conviction when no objection has been made in the trial court.” State v.
Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983) (internal quotation marks and
brackets omitted). “In deciding whether a defect in the jury instruction constitutes
‘plain error,’ the appellate court must examine the entire record and determine if the
instructional error had a probable impact on the jury’s finding of guilt.” Id. at 661,
300 S.E.2d at 378-79. “A prerequisite to our engaging in a ‘plain error’ analysis is the
determination that the instruction complained of constitutes ‘error’ at all.” State v.
Johnson, 320 N.C. 746, 750, 360 S.E.2d 676, 679 (1987).
The Supreme Court of North Carolina held:
In the case of a sleeping, or similarly incapacitated victim,
it makes no difference whether the indictment alleges that
the vaginal intercourse was by force and against the
victim’s will or whether it alleges merely the vaginal
intercourse with an incapacitated victim. In such a case
sexual intercourse with the victim is ipso facto rape
because the force and lack of consent are implied in law.
State v. Moorman, 320 N.C. 387, 392, 358 S.E.2d 502, 506 (1987); see also State v.
Atkins, 193 N.C. App. 200, 204, 666 S.E.2d 809, 812 (2008) (citing Moorman and
explaining that the second theory of second-degree rape “is applicable when the
victim falls within a special class of victims, who are deemed by law incapable of
resisting or withholding consent; thus, force and the absence of consent need not be
proved by the State, as they are implied in law”).
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Defendant acknowledges that the pattern jury instruction follows the text of
the statute. See Caudill v. Smith, 117 N.C. App. 64, 70, 450 S.E.2d 8, 13 (1994) (“This
Court has recognized that the preferred method of jury instruction is the use of the
approved guidelines of the North Carolina Pattern Jury Instructions.”). However,
Defendant argues the jury should have been instructed that lack of consent is an
element of rape of a physically helpless person. Defendant’s argument is predicated
on our Supreme Court’s holding in State v. Holden, 338 N.C. 394, 450 S.E.2d 878
(1994).
In Holden, our Supreme Court determined that the submission of a judgment
at a sentencing hearing, entered upon a defendant’s prior conviction of attempted
second-degree rape, was sufficient for the State to prove, as an aggravating
circumstance under N.C.G.S. § 15A–2000(e)(3) (1988), that the defendant had
committed a prior felony involving the use or threat of violence to the person. 338
N.C. at 403-07, 450 S.E.2d at 883-85. The defendant in Holden — unlike Defendant
in the present case — did not argue on appeal that the trial court should have
instructed the jury that lack of consent was an element of second-degree rape.
Instead, the defendant argued the judgment entered upon his prior conviction for
attempted second-degree rape did not establish, on its own, that the prior felony was
accompanied by the use or threat of violence. Id. at 404, 450 S.E.2d at 883. Thus,
under the defendant’s reasoning, because second-degree rape can involve a person
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who is mentally defective, mentally incapacitated, or physically helpless, violence or
the threat of violence is not necessarily required. Id. at 404, 450 S.E.2d at 883.
Our Supreme Court disagreed with the defendant’s contention, and “reject[ed]
the notion of any felony which may properly be deemed ‘non-violent rape.’” Id. at 405,
450 S.E.2d at 884. The Court held that “[t]he acts of having or attempting to have
sexual intercourse with another person who is mentally defective or incapacitated
and statutorily deemed incapable of consenting — just as with a person who refuses
to consent — involve the ‘use or threat of violence to the person[,]’” noting that it did
not “believe that having or attempting to have sexual intercourse with a ‘physically
helpless’ person in violation of N.C.G.S. § 14-27.3(a)(2) may properly be deemed ‘non-
violent’ rape or attempted rape.” Id. at 406, 450 S.E.2d at 884.
In the present case, the trial court properly instructed the jury on all of the
elements of second-degree rape of a physically helpless person. Since “the force and
lack of consent are implied in law,” Moorman, 320 N.C. at 392, 358 S.E.2d at 506, the
trial court was not required to instruct the jury that lack of consent was an essential
element of second-degree rape. See State v. Compton, 244 N.C. App. 153, 780 S.E.2d
760, No. 15-567, 2015 WL 7288456 (2015) (unpublished) (“The trial court properly
instructed the jury on the elements of second-degree rape of a physically helpless
person because the force and lack of consent are implied in law.” (internal quotation
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Opinion of the Court
marks and citation omitted)). Accordingly, we hold Defendant has failed to
demonstrate error, let alone plain error, in the trial court’s instructions to the jury.
D. Cumulative Error
Defendant argues that, because the trial court erred by denying Defendant’s
motion to dismiss, excluded Dr. Wilson’s testimony, and failed to instruct the jury on
an element of the crime, the trial court committed cumulative error, warranting a
new trial. “Cumulative errors lead to reversal when taken as a whole they deprived
the defendant of his due process right to a fair trial free from prejudicial error.” State
v. Wilkerson, 363 N.C. 382, 426, 683 S.E.2d 174, 201 (2009) (internal quotation marks
and brackets omitted). Since we hold that Defendant has failed to show prejudicial
error at trial, we necessarily find no cumulative error.
E. SBM
Defendant argues the trial court erred in ordering lifetime SBM for Defendant
because the State did not meet its burden of proving that it was a reasonable Fourth
Amendment search. We agree.
Our General Assembly has enacted “a sex offender monitoring program that
uses a continuous satellite-based monitoring system . . . designed to monitor” the
location of individuals convicted of certain sex offenses after they are released from
prison.” N.C. Gen. Stat. § 14-208.40(a) (2017). The United States Supreme Court
held in Grady v. North Carolina, 575 U.S. ___, 191 L. Ed. 2d 459 (2015) that SBM is
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Opinion of the Court
a “search” under the Fourth Amendment. 575 U.S. at ___, 191 L. Ed. 2d at 461-62.
Therefore, before subjecting a defendant to enrollment in SBM, North Carolina
Courts must first “examine whether the State’s monitoring program is reasonable —
when properly viewed as a search.” Id. at ___, 191 L. Ed. 2d at 463. “This
reasonableness inquiry requires the court to analyze the ‘totality of the
circumstances, including the nature and purpose of the search and the extent to
which the search intrudes upon reasonable privacy expectations.’” State v. Greene,
___ N.C. App. ___, ___, 806 S.E.2d 343, 344 (2017) (quoting Grady, 575 U.S. at ___,
191 L. Ed. 2d at 462).
1. Preservation of the Issue
We must first address whether this issue was preserved for appellate review.
At the sentencing hearing, the State asked the trial court to
have the hearing, to have the [c]ourt find under the totality
of the circumstances, balancing those interests of both the
intrusion into his privacy versus a compelling State
interest, that it is not unreasonable and the search is not
unreasonable under these circumstances. You’ve heard the
evidence in the case. I would also submit to you, one, there
have been many cases that come down and talk about the
fact that the United States -- you know, the United States
Supreme Court has recognized the dangers of recidivism in
cases of sex offenders and that when sex offenders reenter
society they are much more likely than any other type of
offender to be arrested for a new rape or sexual assault.
Especially concerning to the State is the fact that, from
what everything I could see in this case, . . . I still don’t
think he gets it. I really don’t. And so that makes me
concerned that the level of ability to re-offend and
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Opinion of the Court
recidivate is much higher. And so I would ask that you do
that balancing test and that under the circumstances find
that it is not an unreasonable search and order lifetime
satellite based monitoring as well.
Defendant failed to object. After hearing the State’s argument, the trial court
announced from the bench:
[T]he Court further finds that -- based on the evidence that
has been submitted in this case and the [c]ourt taking into
consideration the totality of the circumstances, the [c]ourt
at this time finds that it is appropriate and necessary that
upon release from imprisonment that this defendant shall
enroll in a satellite based monitoring program for his
natural life until such time that the monitoring is
terminated pursuant to the North Carolina General
Statutes.
The trial court then specifically asked the parties if either wanted to add anything to
the discussion, and both parties declined.
The State contends that Defendant failed to preserve the issue of whether the
imposition of SBM on Defendant was reasonable under the Fourth Amendment
because he did not object or raise this issue at trial. Defendant argues that, because
SBM was imposed at the sentencing hearing, the issue was automatically preserved
pursuant to State v. Dye, ___ N.C. App. ___, 802 S.E.2d 737 (2017). We reject
Defendant’s argument because the procedural posture of Dye is inapposite to the
present case.
In Dye, the defendant was convicted of statutory rape and sentenced to a term
of imprisonment and SBM for a thirty-year period. Id. at ___, 802 S.E.2d at 739. The
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Opinion of the Court
defendant was sentenced under a statute that required the trial court to determine
whether the defendant fit into a statutorily designated category. Id. at ___, 802
S.E.2d at 742. The statute mandated that, if the trial court determined the defendant
did not fit into a statutorily designated category, the Division of Adult Correction was
required to conduct a risk assessment. Id. at ___, 802 S.E.2d at 742. The trial court
was then able to consider the risk assessment before making a determination as to
whether the defendant required the highest possible level of supervision and
monitoring. Id. at ___, 802 S.E.2d at 742.
The trial court determined the defendant did not fit into a statutorily
designated category and, therefore, ordered that the Division of Adult Correction
conduct a risk assessment. Id. at ___, 802 S.E.2d at 743. The risk assessment
conducted on the defendant indicated that he was in the “Moderate-High” risk
category. Id. at ___, 802 S.E.2d at 743. Based on the assessment, the trial court
found that the defendant required the highest level of monitoring and supervision,
and imposed SBM. Id. at ___, 802 S.E.2d at 743. The defendant did not object. Id.
at ___, 802 S.E.2d at 741-42.
On appeal, the defendant argued the trial court erred by ordering SBM without
making sufficient findings of fact that the defendant required the highest level of
monitoring. Id. at ___, 802 S.E.2d at 741. The defendant contended the matter was
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Opinion of the Court
automatically preserved pursuant to N.C. Gen. Stat. § 15A-1446(d)(18) (2017)3
(providing grounds under which errors are preserved without objection, including if
“[t]he sentence imposed was unauthorized at the time imposed, exceeded the
maximum authorized by law, was illegally imposed, or is otherwise invalid as a
matter of law”). The State argued that the defendant failed to preserve the issue
because he did not object at the SBM hearing. Id. at ___, 802 S.E.2d at 741-42.
In its decision, this Court cited prior decisions that held that a “‘Moderate-
High’ risk category was insufficient to support a finding that the highest possible
level of supervision and monitoring was required.” Id. at ___, 802 S.E.2d at 743. This
Court held the trial court erred in finding that the defendant required the highest
level of supervision and monitoring based solely on the risk assessment, and vacated
the order imposing SBM on the defendant. Id. at ___, 802 S.E.2d at 743-44.
In Dye, the SBM order was clearly erroneous, as the trial court’s finding was
in direct conflict with precedent of this Court. In contrast, in the present case,
Defendant argues the trial court erred in imposing SBM because the State did not
prove that Defendant’s enrollment in SBM was a reasonable Fourth Amendment
search. This Court has never found that the issue of reasonableness within the
context of SBM hearings was within the purview of N.C.G.S. § 15A-1446(d)(18).
3 Although our Supreme Court “has held several subdivisions of subsection 15A-1446(d) to be
unconstitutional encroachments on the rulemaking authority of the Court, subdivision (18) is not one
of them.” State v. Meadows, ___ N.C. ___, ___, 821 S.E.2d 402, ___ (2018) (footnote omitted).
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Opinion of the Court
Thus, we reject Defendant’s argument and hold that the matter was not
automatically preserved by statute.
Having determined the issue was not automatically preserved, we now address
whether the matter was otherwise preserved. “Our appellate courts will only review
constitutional questions raised and passed upon at trial.” State v. Mills, 232 N.C.
App. 460, 466, 754 S.E.2d 674, 678 (2014).
We acknowledge that this is a tumultuous time in our case law regarding the
parties’ burdens and the role of the trial court in hearings on SBM (“Grady hearings”).
A review of recent case law reveals three broad scenarios in which this Court
addressed preservation issues in the context of Grady hearings. In the first scenario,
a defendant fails to object to the imposition of SBM, the State offers no statements
regarding reasonableness, and the trial court does not pass on the issue. See State v.
Lindsey, ___ N.C. App. ___, 818 S.E.2d 344 (2018) (holding the Grady issue was not
preserved for appellate review when it was not raised at trial by either party and not
ruled upon by the trial court, and declining to invoke Rule 2 because the law
regarding preservation of it in the context of Grady hearings was settled); see also
State v. Bishop, ___ N.C. App. ___, 805 S.E.2d 367 (2017). In the second scenario, a
defendant objects to a trial court’s imposition of SBM, but does not specify that the
objection is grounded in Fourth Amendment or Grady. See State v. Bursell, ___ N.C.
App. ___, 813 S.E.2d 463 (2018) (holding the issue of Grady was preserved at trial
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Opinion of the Court
when it was apparent from the context that the defendant’s objection implicated the
defendant’s right to a reasonableness determination). In the third scenario, the State
specifically argues that the imposition of SBM on a defendant is a reasonable Fourth
Amendment search, the defendant does not object to the imposition of SBM, and the
trial court passes on the issue. See State v. Griffin, ___ N.C. App. ___, 818 S.E.2d 336
(2018) (holding the Grady issue was preserved when it was raised at trial and passed
upon by the trial court); see also State v. Hammonds, No. COA17-931, 2018 WL
1386738 (N.C. Ct. App. Mar. 20, 2018) (unpublished).
In essence, our Courts have distinguished between cases in which (1) the trial
court failed to conduct a reasonableness inquiry, and (2) the State initiated a
reasonableness inquiry, and the trial court passed on the matter. In the former, a
defendant must object to preserve the issue because “[a]lthough the State has the
burden of proof of reasonableness of SBM under the Fourth Amendment as directed
by Grady, the defendant still must raise the constitutional objection so the State will
be on notice it must present evidence to meet its burden.” Lindsey, ___ N.C. App. at
___, 818 S.E.2d at 349 (internal citation omitted); see also State v. Stroessenreuther,
___ N.C. App. ___, ___, 793 S.E.2d 734, 735 (2016) (“Under Grady, the trial court was
required to consider the reasonableness of the satellite-based monitoring when [the
defendant] challenged that monitoring on Fourth Amendment grounds.”). In the
latter, the State initiates the Grady discussion and, thus, has the opportunity to
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Opinion of the Court
satisfy its burden of proving a search is reasonable under the Fourth Amendment,
and the trial court has the opportunity to rule on it. Therefore, an objection is not
necessary to preserve the Grady issue for appellate review.
In the present case, the State initiated the Grady discussion and argued
imposition of SBM on Defendant was a reasonable Fourth Amendment search.
Although Defendant did not object at trial, the reasonableness of SBM of Defendant
was raised and passed upon by the trial court. In State v. Hammonds, an unpublished
opinion with facts similar to the present case, the State initiated a Grady discussion,
and the trial court found SBM of the defendant was a reasonable search. 2018 WL
1386738, at *1. The defendant failed to object. Id. at *2. This Court held that “[t]he
dialogue quoted above reflects that the issue of whether SBM constituted a
reasonable search pursuant to Grady was raised by the State during the hearing and
passed on by the trial court. The State cannot now argue that the issue was waived.”
Id. at *2. Here, as in Hammonds, it is evident the State recognized that a Grady
hearing was necessary, and the trial court understood it needed to conduct a
balancing test. Therefore, although Defendant did not object at trial, we hold the
Grady issue was preserved for appellate review.
2. Reasonableness Inquiry
We now address whether the trial court properly determined that SBM was a
reasonable Fourth Amendment search of Defendant. “The State bears the burden of
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Opinion of the Court
proving that enrollment in satellite-based monitoring is a permissible Fourth
Amendment search of each particular defendant targeted.” State v. White, ___ N.C.
App. ___, ___, 820 S.E.2d 116, ___. (2018).
In the present case, the State initiated the discussion about reasonableness
and the Fourth Amendment. The State asked the trial court to balance the invasion
of privacy against the State’s compelling interest, and to find that the imposition of
SBM on Defendant was not an unreasonable search. The State requested that the
trial court consider the evidence of the case and that: (1) “the United States Supreme
Court has recognized the dangers of recidivism in cases of sex offenders and that
when sex offenders reenter society they are much more likely than any other type of
offender to be arrested for a new rape or sexual assault;” and (2) based on the State’s
observation, Defendant does not “get[] it,” which makes the State “concerned that the
level of ability to re-offend and recidivate is much higher.” The trial court announced
from the bench that, after considering the totality of the circumstances, Defendant’s
enrollment in SBM was “appropriate and necessary.”
It is apparent from the transcript that the State had both the knowledge of its
burden and the opportunity to put on sufficient evidence to satisfy its burden. Cf. Id.
at ___, 820 S.E.2d at ___ (vacating and remanding an SBM order when “[t]he trial
court did not afford the State an opportunity to present evidence in order to establish
the constitutionality of enrolling [the d]efendant in satellite-based monitoring”). In
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Opinion of the Court
the present case, the State failed to carry its burden of proving SBM of Defendant
was a reasonable Fourth Amendment search because it did not put on any evidence
regarding reasonableness. See Greene, ___ N.C. App. at ___, 806 S.E.2d at 345-46
(reversing the trial court’s order because “the nature of the State’s burden was no
longer uncertain at the time of defendant’s satellite-based monitoring hearing.
[Previous cases from this Court] made clear that a case for satellite-based monitoring
is the State’s to make”). Therefore, because “the State will have only one opportunity
to prove that SBM is a reasonable search of the defendant[,]” and, in the present case,
the State was previously afforded such an opportunity and failed to prove that SBM
is a reasonable search of Defendant, we reverse the trial court’s SBM order. State v.
Grady, ___ N.C. App. ___, ___, 817 S.E.2d 18, 28 (2018)
E. Ineffective Assistance of Counsel
Defendant argues that, in the event this Court does not reach the merits of the
SBM issue, Defendant received ineffective assistance of counsel. However, because
we have reached the merits of the above issue, we need not address this alternative
argument.
IV. Conclusion
For the reasons stated above, this Court holds that the trial court did not err
in denying Defendant’s motion to dismiss and in instructing the jury in accord with
the pattern jury instructions for second-degree rape. We also hold that the trial court
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Opinion of the Court
did not commit prejudicial error in excluding the testimony of Dr. Wilson. Finally,
we hold that the trial court erred in imposing SBM on Defendant, and we reverse the
SBM order.
NO ERROR IN PART; NO PREJUDICIAL ERROR IN PART; REVERSED IN
PART.
Judges HUNTER, JR. and HAMPSON concur.
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