in the Court of Appeals 14 January 2019.
by Defendant from judgment and order entered 30 March 2017 by
Judge Reuben F. Young in Superior Court, Wake County No. 14
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.
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 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.
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.
Factual & Procedural History
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.
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 those two instances, Miranda and Defendant never
engaged in a romantic relationship.
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.
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
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.
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.
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 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.
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
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
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."
following afternoon, Perla called Miranda. Perla recommended
Miranda seek medical attention and complete a rape kit, and
they agreed to meet at a hospital in Woodbridge, Virginia.
After waiting hours in the emergency room without being seen,
Perla and Miranda drove to a pharmacy to purchase Plan B.
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."
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 statement, and prepared
a report, which he passed on to the Raleigh Police
Department's Detective Division.
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.
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
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 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."
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.
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.
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
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 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.
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
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.
Appellate Jurisdiction and Writs of Certiorari
initial matter, this Court's jurisdiction must be
determined. Defendant has filed two petitions for writ of
certiorari; we address each in turn.
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).
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 ...