State v. White , 261 N.C. App. 506 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1355
Filed: 18 September 2018
New Hanover County, No. 15 CRS 56572
STATE OF NORTH CAROLINA
v.
DAMIEN AARON WHITE, Defendant.
Appeal by defendant from judgment and order entered 6 June 2017 by Judge
Imelda J. Pate in New Hanover County Superior Court. Heard in the Court of
Appeals 6 June 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Tamara
S. Zmuda, for the state-appellee.
Mark Montgomery for defendant-appellant.
ZACHARY, Judge.
Defendant Damien Aaron White appeals (1) from the trial court’s order
denying his Motion to Dismiss his charge of first-degree rape, and (2) from the trial
court’s order enrolling him in satellite-based monitoring. Because we conclude that
the State presented sufficient evidence to withstand Defendant’s Motion to Dismiss
his first-degree rape charge, we affirm the trial court’s denial of the Motion to
Dismiss. Because the trial court did not conduct a hearing to determine whether it
would be constitutional to subject Defendant to satellite-based monitoring upon his
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Opinion of the Court
release, we vacate the trial court’s order enrolling Defendant in satellite-based
monitoring, and remand for a hearing on this matter.
Background
Defendant was indicted for first-degree rape and was tried before a jury
beginning on 30 May 2017. The victim could not remember the incident, and thus
was unable to testify that she had been raped or that Defendant was the one who had
raped her. Rather, the evidence at Defendant’s trial tended to show the following:
The victim was out with several of her friends one night in downtown
Wilmington. The victim and Defendant had never met each other prior to this time.
At approximately 1:30 a.m., the victim and her friend Eddie were talking when a
man—whom Eddie was “six out of ten” sure was Defendant—approached the victim.
The victim and the man walked away together. Ten minutes later, the victim’s friend
Katherine ran into the victim. The victim eventually walked away from Katherine,
at which point a man—whom Katherine was “95 percent confident” was Defendant—
asked Katherine if the victim was okay.
Later in the evening, Jean and John, strangers to the victim, were walking
downtown when they heard a woman screaming for help. Jean and John ran toward
the screams and came upon a man in an alley “straddling” the victim, “in like a
missionary position.” John threw the man off of the victim, and recalled that he could
“clearly see [the man] pulling his pants up” and that the man had an erection. The
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Opinion of the Court
man said, “It’s not what it looks like,” and another individual yelled out, “He raped
her, call the police.” The man then took off running. John and another male ran after
the man while Jean stayed with the victim, who had been left on the ground with her
pants and underwear pulled down to her ankles.
Officer Benjamin Galluppi was on duty near the scene when he saw Defendant
being chased by two males. Officer Galluppi was able to detain Defendant, whose
pants were undone. Jean and John participated in a show-up identification of
Defendant shortly thereafter. Jean was “a hundred percent sure,” and John had no
“doubt in [his] mind,” that Defendant was the man that they had just seen straddling
the victim in the alley.
The victim was taken to the emergency room where she was examined by
Wendy Bledsoe, an emergency room nurse and expert in sexual assault examination.
In addition to having sustained a concussion and various injuries to her head, neck,
and forearm, Nurse Bledsoe testified that she found “debris and a small black hair
inside the vagina on one of the [victim’s] vaginal walls” that was “most consistent
with a pubic hair.” The victim did not have pubic hair. The victim’s sexual assault kit
was tested, but no sperm or semen was found. A DNA sample was taken from the
victim’s underwear and revealed one profile matching the victim’s DNA and another
“minor profile.” However, the profile not belonging to the victim “was inconclusive
due to insufficient quality and quantity of DNA present” on the underwear.
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Opinion of the Court
Defendant also testified at trial as follows: Defendant went downtown that
evening to go out with friends but could not get into any bars because he did not have
his identification. Accordingly, he spent most of the evening talking to his friends
outside in the street and walking around trying to find a bar into which he could gain
admission without identification.
At one point Defendant walked to a parking garage in order to urinate.
Afterward, Defendant recalls seeing the victim:
[T]here was a young woman [the victim] who was walking
down the street. You could definitely tell she had been
drinking and everything. She was stumbling as she was
walking. She could walk but she was stumbling and
everything, and she had walked up and interlocked her
arm with mine, and I smiled at her and she smiled at me
and we kept walking down the street.
And I’m walking back . . . and I think we got maybe
like maybe a block and a half . . . and she had seen two
other male gentlemen that I assumed she knew and she
separated from me and went to them and interlocked
between them two and I looked at them. I asked did they
have her, was everything fine, they said yeah, they had her
and they went off across the street in the opposite direction
and I went further down. I said okay and kept going. That
was it. I continued walking.
Defendant came across the victim once again later in the evening:
. . . I was walking up the street and then there is an
alleyway that was to my right and on the side of the street
that I was walking on, there was hardly anybody or
anything on it, so I wanted to get to the other side where it
was more populated and where I could see more people and
try to find some area because at that point I didn’t know
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Opinion of the Court
where I was at.
And so as soon as I turned down the alleyway, right
at the very beginning of the alleyway, there was a
dumpster and right there was a young woman out like
exposed, laying on her side. . . . [A]nd so I knelt down in
front of her to ask her if she was all right or if she needed
anything or any kind of help and as soon as I got her
attention, she turns and looks at me and at that point I
could tell that this is the same young woman who I had
seen earlier.
She starts to scream, “Get away from me nigger, get
away from me, nigger,” over and over again. So I’m like
moderate reaction, just like, whoa, and I stand up and . . .
as soon as I stand up, it’s almost immediately I see fists
and people are trying to attack me and I didn’t know what
was going on in that situation.
The first thought is, I mean, I’m in unfamiliar
territory, I don’t know what’s going on and I’m being
attacked. And so my initial thought was to leave, get away
from the situation, so that’s what I did, I ran.
Defendant testified that Officer Galluppi possibly saw that his pants were
unzipped because he had just gone to the bathroom, and that “I do have a habit of
maybe leaving a fly undone, so it is quite possible that I didn’t zip my pants back up
afterwards.” Defendant testified that he never pulled his pants off or down that
evening, but that he does like to wear his pants “loose,” and that if he “ever ha[s] to
bend over or to pick something up, sit down for too long or kneel down for anything,
once I stand up I have to readjust my pants.”
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Opinion of the Court
Finally, Defendant testified that he did not rape the victim, did not attempt to
rape the victim, did not pull her pants down, and did not “ever touch her in any
manner other than attempt to assist her.”
Defendant’s trial counsel moved to dismiss the first-degree rape charge for
insufficient evidence. The trial court denied Defendant’s Motion to Dismiss and the
jury subsequently convicted Defendant of first-degree rape. The trial court sentenced
Defendant to 240 to 300 months’ imprisonment and ordered that he enroll in satellite-
based monitoring for the remainder of his natural life upon his release from prison.
The trial court ordered Defendant to enroll in satellite-based monitoring without first
having conducted an inquiry into whether doing so would constitute a permissible
Fourth Amendment search.
Defendant appealed from his conviction in open court and filed written notice
of appeal from the trial court’s order enrolling him in satellite-based monitoring. On
appeal, Defendant argues (1) that the trial court erred in denying Defendant’s motion
to dismiss his first-degree rape charge for insufficiency of the evidence, and (2) that
the trial court erred in ordering lifetime satellite-based monitoring without first
conducting a hearing on its constitutionality.
Motion to Dismiss
The standard of review on a motion to dismiss is well established:
When reviewing a defendant’s motion to dismiss a charge
on the basis of insufficiency of the evidence, this Court
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Opinion of the Court
determines whether the State presented substantial
evidence in support of each element of the charged offense.
Substantial evidence is relevant evidence that a reasonable
person might accept as adequate, or would consider
necessary to support a particular conclusion. In this
determination, all evidence is considered in the light most
favorable to the State, and the State receives the benefit of
every reasonable inference supported by that evidence. The
defendant’s evidence, unless favorable to the State, is not
to be taken into consideration, except when it is consistent
with the State’s evidence, the defendant’s evidence may be
used to explain or clarify that offered by the State.
Additionally, a substantial evidence inquiry examines the
sufficiency of the evidence presented but not its weight,
which is a matter for the jury. Thus, if there is substantial
evidence—whether direct, circumstantial, or both—to
support a finding that the offense charged has been
committed and that the defendant committed it, the case is
for the jury and the motion to dismiss should be denied.
State v. Hunt, 365 N.C. 432, 436, 722 S.E.2d 484, 488 (2012) (citations and emphasis
omitted).
“The test of the sufficiency of the evidence on a motion to dismiss is the same
whether the evidence is direct, circumstantial, or both.” State v. Bullard, 312 N.C.
129, 160, 322 S.E.2d 370, 388 (1984) (citation omitted). Where the State’s evidence
of the defendant’s guilt is circumstantial, “the question for the court is whether a
reasonable inference of defendant’s guilt may be drawn from the circumstances. If so,
it is for the jury to decide whether the facts, taken singly or in combination, satisfy
them beyond a reasonable doubt that the defendant is actually guilty.” State v.
Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965) (citation omitted).
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Opinion of the Court
In order to survive a motion to dismiss a charge of first-degree rape, the State
must present sufficient evidence that the defendant “engage[ed] in vaginal
intercourse with another person by force and against the will of the other person[.]”
N.C. Gen. Stat. § 14-27.21(a) (2017). “The slightest penetration of the female sex
organ by the male sex organ is sufficient to constitute vaginal intercourse within the
meaning of the statute.” State v. McNicholas, 322 N.C. 548, 556, 369 S.E.2d 569, 574
(1988) (citing State v. Williams, 314 N.C. 337, 333 S.E.2d 708 (1985)).
In the instant case, Defendant argues that the trial court erred when it denied
his Motion to Dismiss because the State failed to present sufficient evidence (1) that
the perpetrator engaged in vaginal intercourse with—i.e., “penetrated”—the victim,
and (2) if so, that Defendant was the perpetrator. We disagree.
The evidence to which the State points in support of the trial court’s denial of
Defendant’s Motion to Dismiss tended to show that the victim was heard screaming
“Help, help me.” The scream was “absolutely not” a joke: “It was a distress, it was—
it was scary. It was you knew something was seriously wrong.” When Jean and John
ran toward the sound of the victim’s screams, they “saw a man straddling” the victim
“in like a missionary position,” at which point John “ran up to him and I threw him
off of her and he stands up.” John testified that when he pushed the man off of the
victim, “I’m watching his hands and I can clearly see him pulling his pants up[.]” The
man looked “like a deer caught in headlights . . . like in shock, like standing there[,]”
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Opinion of the Court
and “had an erection.” The victim’s “underwear and her pants were all the way to the
ankle.” Jean testified that someone yelled, “Call the police, he raped her,” at which
point the man “took right off. As soon as that was said, he was gone.” Jean testified
that the victim was crying and “kept thanking me,” and that, “I’m a mom, I just—I
knew she went through something, I just held her.”
In addition, Nurse Bledsoe found “debris and a small black hair inside the
vagina on one of the [victim’s] vaginal walls” that was “most consistent with a pubic
hair.” The victim did not have pubic hair. The following exchange took place between
Nurse Bledsoe and the State regarding the debris and hair found inside the victim:
Q. In your training and experience, Ms. Bledsoe, if a
female sits on a beach without bathing suit bottoms, for
example, would the sand go up inside her vaginal canal?
...
A. No.
Q. In your training and experience, if a female goes
swimming and, say, is not wearing bathing suit bottoms, if
there is debris in the water, would that go up inside that
female?
...
A. No.
Q. And if a female sits on a paved alley that has dirt
and debris all over it, just by sitting there would that dirt
and debris be pulled up by the vaginal canal?
...
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A. No.
Q. And why is that?
...
A. The typical state of the vaginal walls, as I mentioned
earlier, are collapsed in their normal state, they’re
collapsed and they only open up if something is introduced
inside of them.
The victim’s friend Eddie identified Defendant as the man that he saw with
the victim roughly thirty minutes before the assault took place to a sixty-percent
degree of certainty. Ten minutes after Defendant was identified as being with the
victim, the victim’s friend Katherine testified that a man came up to her and asked if
the victim was okay. Katherine identified Defendant as the person she spoke to that
night with “95 percent confiden[ce].” Officer Galluppi observed Defendant running
away from the scene of the assault and being chased by John and the other male.
Officer Galluppi apprehended Defendant. At show-up identifications of Defendant
shortly thereafter, Jean was “a hundred percent sure” that Defendant was the man
who she saw straddling the victim, and John had no “doubt in [his] mind” that
Defendant was the man whom he had thrown off of the victim.
“Considered in the light most favorable to the State, a reasonable juror could
have inferred from this evidence” (1) that the victim was vaginally penetrated against
her will, and (2) that Defendant was the perpetrator of that assault. Hunt, 365 N.C.
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at 440, 722 S.E.2d at 490 (citation omitted). Defendant’s arguments pertaining to the
discrepancies and inconsistencies in the evidence go to the evidence’s weight rather
than its sufficiency and were thus matters to be resolved not by the trial judge, but
by the jury. Hunt, 365 N.C. at 436, 722 S.E.2d at 488. Accordingly, the trial court
properly denied Defendant’s Motion to Dismiss the first-degree rape charge.
Satellite-Based Monitoring
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 has held that [this]
program constitutes a search for purposes of the Fourth
Amendment. Grady v. North Carolina, 575 U.S. ___, ___,
191 L. Ed. 2d 459, 462, 135 S. Ct. 1368 (2015) [(“Grady I”)].
As such, North Carolina courts must first “examine
whether the State’s monitoring program is reasonable—
when properly viewed as a search”—before subjecting a
defendant to its enrollment. 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.”
Id. at ___, 191 L. Ed. 2d at 462.
State v. Greene, ___ N.C. App. ___, ___, 806 S.E.2d 343, 344 (2017). The State bears
the burden of proving that enrollment in satellite-based monitoring is a permissible
Fourth Amendment search of each particular defendant targeted. State v. Blue, ___
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N.C. App. ___, ___, 783 S.E.2d 524, 527 (2016); State v. Morris, ___ N.C. App. ___,
___, 783 S.E.2d 528, 530 (2016). This Court recently addressed the framework
governing the constitutionality of satellite-based monitoring orders in State v.
Gordon, No. COA17-1077, ___ N.C. App. ___, ___ S.E.2d ___ (filed Sept. 4, 2018), State
v. Griffin, No. COA17-386, ___ N.C. App. ___, ___ S.E.2d ___ (filed Aug. 7, 2018), and
on remand from Grady I in State v. Grady, ___ N.C. App. ___, 817 S.E.2d 18 (2018)
(“Grady II ”).
In the instant case, after judgment was entered, the trial court ordered
Defendant to enroll in satellite-based monitoring for the remainder of his natural life.
The trial court did so despite not having held a hearing or having made a
determination on the constitutionality of that search. The trial court simply
concluded that, “in regard to satellite-based monitoring, that upon release from
imprisonment, the defendant shall enroll in satellite-based monitoring for the rest of
his natural life.” The State had not yet offered any evidence in support of the
constitutionality of the satellite-based monitoring of Defendant after Defendant’s
eventual release from prison. Defendant cited Grady I and objected to the
constitutionality of the satellite-based monitoring program, which the trial court
stated was “so noted and those objections are denied.” Defendant filed proper written
notice of appeal.
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Opinion of the Court
It is clear that the trial court erred when it ordered Defendant to enroll in
satellite-based monitoring upon his release from prison without first holding a
hearing in order to determine whether doing so would be in compliance with the
Fourth Amendment. Blue, ___ N.C. App. at ___, 783 S.E.2d at 527; Morris, ___ N.C.
App. at ___, 783 S.E.2d at 529-530. In light of this deficiency on the part of the trial
court, the State concedes that this Court should vacate the satellite-based monitoring
order and “remand this issue to the trial court to provide the parties an opportunity
to offer evidence and arguments regarding [satellite-based monitoring] and for the
trial court to make findings as” to its constitutionality. Defendant, however, cites
Greene, supra, and argues that the appropriate remedy is for this Court to reverse
the satellite-based monitoring order without remanding for a hearing. Defendant’s
application of Greene is misplaced.
In Greene, there was a hearing in the trial court. Greene, ___ N.C. App. at ___,
806 S.E.2d at 344. The State put forth scant evidence in support of the
constitutionality of satellite-based monitoring and both parties presented arguments
on the matter. Id. The defendant filed a motion to dismiss the State’s application for
satellite-based monitoring, but the trial court concluded that the State’s evidence had
established that satellite-based monitoring constituted a reasonable Fourth
Amendment search of the defendant. Id. The defendant appealed, arguing that “the
State’s evidence was insufficient to establish” the trial court’s finding “that the
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enrollment constituted a reasonable Fourth Amendment search[.]” Id. The State
conceded that the evidence it presented at the hearing was insufficient. Id. We thus
concluded that the matter “ended there[,]” and that the State was therefore not
“permitted to ‘try again’ ” by presenting additional evidence at a second hearing. Id.
at ___, 806 S.E.2d at 345. The defendant’s motion to dismiss should have been
granted. Id.
In the instant case, there was no hearing. The trial court did not afford the
State an opportunity to present evidence in order to establish the constitutionality of
enrolling Defendant in satellite-based monitoring. Because no evidentiary hearing
was held on the matter whatsoever, we are unable to review the propriety of enrolling
Defendant in lifetime satellite-based monitoring. Cf. Gordon, No. COA17-1077, ___
N.C. App. ___, ___ S.E.2d ___ (filed Sept. 4, 2018). Accordingly, we must remand the
matter to the trial court in order to conduct a hearing, at which time the State will
be required to establish the constitutionality of subjecting Defendant to continuous
location monitoring for the remainder of his natural life upon Defendant’s eventual
release from prison. After allowing the State an opportunity to satisfy this arduous
burden and after hearing arguments from both sides, the trial court must make its
Fourth Amendment determination after having explicitly analyzed 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[,]” in light of this
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Court’s recent opinions in Gordon, Griffin, and Grady II, supra. Grady, 575 U.S. at
___, 191 L. Ed. 2d at 462. The remand hearing will be the State’s sole opportunity to
present evidence that ordering Defendant to enroll in satellite-based monitoring for
the remainder of his natural life after Defendant has been released from prison will
constitute a permissible search under the Fourth Amendment. Greene, ___ N.C. App.
at ___, 806 S.E.2d at 345.
Conclusion
The trial court’s order denying Defendant’s Motion to Dismiss is affirmed. The
trial court’s order enrolling Defendant in satellite-based monitoring is vacated and
remanded for the purpose of conducting an evidentiary hearing consistent with this
Opinion.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
Judges ELMORE and HUNTER, JR. concur.
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