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State v. Lopez

Court of Appeals of North Carolina

March 19, 2019

STATE OF NORTH CAROLINA
v.
JONATHAN LOPEZ

          Heard in the Court of Appeals 14 January 2019.

          Appeal by Defendant from judgment and order entered 30 March 2017 by Judge Reuben F. Young in Superior Court, Wake County No. 14 CRS 220638.

          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 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 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.

         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 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 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 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 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 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.

         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 ...


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