Heard in the Court of Appeals 23 September 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Appeal by defendant from judgment entered 10 June 2013 by Judge C. Phillip Ginn
in Buncombe County Superior Court.
Buncombe County. No. 10 CRS 052714.
NO ERROR IN PART; NO PREJUDICIAL ERROR IN PART; REMANDED FOR RESENTENCING.
Attorney General Roy Cooper, by Special Deputy Attorney General K. D. Sturgis, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant.
Robert C. HUNTER, Judge. Judges DILLON and DAVIS concur.
HUNTER, Robert C., Judge.
Andrew Grady Davis (" defendant" ) appeals from judgment entered after a jury convicted him of assault with a deadly weapon, first degree burglary, and first degree rape. On appeal, defendant argues that the trial court erred by preventing him from presenting evidence as to: (1) the conditions of the Asheville Police Department (" APD" ) evidence refrigerator; (2) prior sexual behavior of the complaining witness; and (3) the investigators' failure to comply with sexual assault evidence collection protocols. Additionally, defendant contends that the trial court erred by ordering him to register as a sex offender and enroll in satellite-based monitoring (" SBM" ) for the remainder of his life.
After careful review, we conclude that the trial court did not err in excluding evidence pertaining to the conditions of the APD refrigerator, did not commit prejudicial error by excluding evidence of the victim's prior sexual behavior, but did err by enrolling defendant in SBM under an inapplicable statute. Accordingly, we remand the case for resentencing.
The following evidence was presented at trial: On the night of 22 September 2001, C.W. was dropped off at her townhouse apartment in Asheville, North Carolina. After putting on her pajamas and watching television, she fell asleep on the downstairs couch; her roommate was asleep upstairs. C.W. awoke to the sound of someone coming through the unlocked sliding glass patio door. An individual shoved C.W.'s face onto the couch, put a knife to her neck, and threatened to kill her if she screamed. The assailant put a cloth or sock into C.W.'s mouth, pulled off her shorts, and vaginally raped her with his penis. The assailant ran the knife over C.W.'s body, leaving scratches on her buttocks and arm. The attacker then stopped abruptly and covered C.W. with a blanket. C.W. testified that because it was dark and she was facing toward the couch, she could not see ...