State v. DeJesus ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-750
Filed: 7 May 2019
Wake County, No. 16 CRS 223217
STATE OF NORTH CAROLINA
v.
ALEXANDER DEJESUS, AKA ALEXANDER SIGARU-ARGUETA
Appeal by defendant from judgment entered 3 April 2018 by Judge Carl R. Fox
in Wake County Superior Court. Heard in the Court of Appeals 14 February 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Neil C.
Dalton and Assistant Attorney General Kathryne E. Hathcock, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katy
Dickinson-Schultz, for defendant-appellant.
ZACHARY, Judge.
Defendant Alexander DeJesus, a.k.a. Alexander Sigaru-Argueta, appeals from
a judgment entered upon a bench verdict finding him guilty of three counts of
statutory rape of a child. Defendant argues that the trial court erred in (1) denying
his motion to dismiss two counts of statutory rape based on the corpus delicti rule, (2)
admitting a purported copy of the victim’s Honduran birth certificate, and (3)
ordering that he enroll in lifetime satellite-based monitoring. We affirm the trial
court’s denial of Defendant’s motion to dismiss, conclude that the trial court did not
STATE V. DEJESUS
Opinion of the Court
err in admitting the copy of the victim’s Honduran birth certificate, and dismiss
Defendant’s appeal concerning the trial court’s satellite-based monitoring order.
Background
Defendant was indicted on 23 January 2017 for three counts of statutory rape
of a child, each with a listed offense date of “April 1, 2016 through May 31, 2016.”
Defendant waived his right to a jury trial, and a bench trial was thereafter held before
the Honorable Carl R. Fox in Wake County Superior Court beginning on 2 April 2018.
The evidence tended to show that Defendant was in a relationship with the
victim’s mother, and that Defendant, the victim, and the victim’s mother were living
together during the time in question. Sometime during the fall of 2016, the victim’s
middle school social worker Megan Vaughan noticed that the victim was visibly
pregnant. The victim was in seventh grade at the time. After speaking with the
victim, Ms. Vaughan filed an incident report with the Raleigh Police Department.
When Detective Alex Doughty met with the victim on 1 December 2016, she
identified Defendant as the father of her child. Detective Doughty took several
photographs of the victim in order “to show her youth and the fact of her age being
what it was. And, unfortunately, . . . because of the stage of which her stomach
appeared to be.”
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Detective Doughty also interviewed Defendant on 1 December 2016. Detective
Doughty testified that during the interview, he “confronted [Defendant] directly”
about the paternity of the victim’s child:
[THE STATE:] What was his response to that?
[DETECTIVE DOUGHTY:] I proposed it as an
either/or question to him in regards to that I knew that he
was the father of the child. What I was concerned about
was whether or not that it was consensual or a forced event.
....
Q. What did the defendant say to you about that?
A. He had stated that he had never forced [the victim]
and that everything that had occurred between the two of
them was consensual.
Q. Now, . . . when he said everything that occurred, did
you clarify with him what that meant?
A. He defined that as that they had consensual sex on
at least three occasions that he could account for.
Q. And how, if at all, did he describe the type of sex that
they had?
A. Just vaginal penile. I went into clarity with him
about the several methods in which sex could occur as well
as any potential sex offenses involving cunnilingus,
fellatio. Again, he denied that there was anything other
than just vaginal sex.
....
Q. . . . You said that he said that it was three times?
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A. That’s correct.
Q. And do you recall anything that he said about those
three different times?
A. No. He only indicated that there was three times.
Q. Did he—do you recall whether he said that they
were separate three times?
[DEFENSE COUNSEL]: Objection. Leading.
THE COURT: Sustained.
Q. How many different times did he confess to you?
A. Three independent times over the course of, I
believe, a month or two. It was maybe several months.
The record indicates that the victim gave birth sometime between 21 January
2017 and 23 January 2017. Thereafter, DNA testing established that Defendant was
indeed the father of her child.
Defendant was charged with three counts of statutory rape of a child on the
basis of his confession. Pursuant to N.C. Gen. Stat. § 14-27.23, the State was required
to establish that the victim was “under the age of 13” and that Defendant was “at
least 18 years of age” at the time of the offenses. N.C. Gen. Stat. § 14-27.23(a) (2016).
Included in the evidence at trial was Defendant’s admission that he was born on 14
October 1994, and that he was therefore 21 years of age during the time alleged in
the indictment. The State submitted a purported copy of the victim’s Honduran birth
certificate in order to establish that the victim was 12 years old at the time of the
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incidents. Defendant objected to the admission of the copy of the victim’s Honduran
birth certificate on authentication and hearsay grounds, but the trial court overruled
Defendant’s objection and admitted the copy of the birth certificate into evidence.
Neither Defendant, the victim, nor her mother testified at trial, and Defendant
presented no evidence. At the close of the evidence, Defendant moved the trial court
to dismiss two of the statutory rape charges, arguing that “it only takes one time to
get pregnant. So where is the rest of the evidence as it applies to [the remaining two]
counts . . . . [T]hat knocks two of the counts out . . . just based on the evidence alone.”
Defendant noted that the only evidence supporting the remaining two charges was
his extrajudicial confession, which Defendant maintained was insufficient under the
corpus delicti rule.
The trial court denied Defendant’s motion to dismiss and found Defendant
guilty of three counts of statutory rape of a child. The trial court sentenced Defendant
to 300-420 months in the custody of the North Carolina Division of Adult Correction
and ordered that he be enrolled in lifetime satellite-based monitoring upon his
release. Defendant gave oral notice of appeal from the trial court’s judgment in open
court. Defendant did not provide written notice of appeal from the trial court’s order
enrolling him in satellite-based monitoring. However, on 23 August 2018, Defendant
filed a petition for writ of certiorari requesting that this Court also review the trial
court’s satellite-based monitoring order.
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Discussion
On appeal, Defendant argues that (1) the trial court erred in denying his
motion to dismiss two of his three counts of statutory rape of a child under the corpus
delicti rule; (2) the trial court erred in admitting the copy of the victim’s Honduran
birth certificate because it was not properly authenticated and constituted
inadmissible hearsay; and (3) the trial court’s satellite-based monitoring order must
be vacated because the State presented no evidence that Defendant’s enrollment
would satisfy the Fourth Amendment.
I. Motion to Dismiss
Defendant first challenges the trial court’s denial of his motion to dismiss two
of his three statutory rape charges, which arose following Defendant’s confession that
he had vaginal intercourse with the victim on three separate occasions. Defendant
recognizes that there was a “confirmatory circumstance to support one count of
statutory rape,” that is, the victim’s pregnancy. However, Defendant argues that
“[t]here was no evidence corroborating the other two charges” aside from his
extrajudicial confession, and therefore his motion to dismiss two counts of statutory
rape should have been granted on the basis of the corpus delicti rule. We disagree.
a. Standard of Review
We review de novo the trial court’s denial of a motion to dismiss. State v. Cox,
367 N.C. 147, 151, 749 S.E.2d 271, 275 (2013).
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Upon a defendant’s motion to dismiss for insufficient
evidence, the question for the court is whether there is
substantial evidence (1) of each essential element of the
offense charged and (2) of defendant’s being the
perpetrator of such offense. If so, the motion is properly
denied. Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion. The evidence is to be considered in the light
most favorable to the State, and the State is entitled to
every reasonable inference to be drawn therefrom.
Id. at 150, 749 S.E.2d at 274 (internal citations and ellipses omitted).
Whether a defendant’s extrajudicial confession may survive a motion to
dismiss depends upon the satisfaction of the corpus delicti rule. Id. at 151, 749 S.E.2d
at 275.
b. The Corpus Delicti Rule
It is well settled that “an extrajudicial confession, standing alone, is not
sufficient to sustain a conviction of a crime.” State v. Parker, 315 N.C. 222, 229, 337
S.E.2d 487, 491 (1985). Instead, where “the State relies solely on [a] defendant’s
confession, the State must meet the additional burden imposed by the corpus delicti
rule,” State v. Sweat, 366 N.C. 79, 85, 727 S.E.2d 691, 695 (2012), which requires
some level of independent corroborative evidence in order “to ensure that a person is
not convicted of a crime that was never committed.” Parker, 315 N.C. at 229, 337
S.E.2d at 491 (quotation marks omitted). “Literally, the phrase ‘corpus delicti’ means
the ‘body of the crime,’ ” id. at 231, 337 S.E.2d at 492 (citation omitted), and
essentially “signifies merely the fact of the specific loss or injury sustained, e.g., death
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of a victim or burning of a house.” Corpus Delicti, BLACK’S LAW DICTIONARY (10th ed.
2014).
“The foundation for the corpus delicti rule lies historically in the convergence
of” the following three policy factors:
first, the shock which resulted from those rare but widely
reported cases in which the “victim” returned alive after
his supposed murderer had been convicted; and secondly,
the general distrust of extrajudicial confessions stemming
from the possibilities that a confession may have been
erroneously reported or construed, involuntarily made,
mistaken as to law or fact, or falsely volunteered by an
insane or mentally disturbed individual[;] and, thirdly, the
realization that sound law enforcement requires police
investigations which extend beyond the words of the
accused.
Parker, 315 N.C. at 233, 337 S.E.2d at 493 (citation and original alterations omitted).
Under the traditional corpus delicti rule, the State is required to “present
corroborative evidence, independent of the defendant’s confession, tending to show
that . . . the injury or harm constituting the crime occurred.” Cox, 367 N.C. at 151,
749 S.E.2d at 275 (quotation marks omitted). “This traditional approach requires that
the independent evidence touch or concern the corpus delicti—literally, the body of
the crime, such as the dead body in a murder case.” Id. (quotation marks omitted).
In Parker, our Supreme Court examined the shortfalls of the traditional corpus
delicti rule and concluded that reliance on an extrajudicial confession may be
appropriate in certain circumstances, even though “independent proof of the
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commission of the crime—that is, the corpus delicti—is lacking.” Id. at 152, 749
S.E.2d at 276. The Supreme Court elected to supplement the traditional corpus delicti
rule by adopting the more modern “trustworthiness” formulation of the rule, which
focuses “on the reliability of a defendant’s confession.” State v. Messer, ___ N.C. App.
___, ___, 806 S.E.2d 315, 322 (2017). Under this approach, the State need not provide
independent proof of the corpus delicti so long as there is “substantial independent
evidence tending to establish the trustworthiness of the defendant’s extrajudicial
confession.” Cox, 367 N.C. at 152, 749 S.E.2d at 276. Such substantial independent
evidence may “includ[e] facts that tend to show the defendant had the opportunity to
commit the crime,” as well as other “strong corroboration of essential facts and
circumstances embraced in the defendant’s confession.” Parker, 315 N.C. at 236, 337
S.E.2d at 495. Indeed, while noting that the newly adopted approach relaxed the
standard of required corroboration, the Parker Court emphasized the need to “remain
advertent to the reason for [the corpus delicti rule’s] existence, that is, to protect
against convictions for crimes that have not in fact occurred.” Id.c. Application
In the instant case, while the victim’s pregnancy corroborated Defendant’s
confession as to one count of statutory rape of a child, the remaining two counts were
supported solely by Defendant’s extrajudicial confession. Accordingly, we must
determine whether there was substantial independent evidence presented that
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tended to establish the trustworthiness of Defendant’s confession that he engaged in
vaginal intercourse with the victim on at least three separate occasions. We conclude
that the victim’s pregnancy, together with the evidence of Defendant’s opportunity to
commit these crimes and the circumstances surrounding his statement to detectives,
provide sufficient corroboration to engender a belief in the overall truth of
Defendant’s confession.
Initially, we note that there is no contention in the instant case that
Defendant’s extrajudicial confession was the product of deception or coercion. See id.
at 234, 337 S.E.2d at 494 (“The second historical justification for the corpus delicti
rule relates to the concern that the defendant’s confession might have been coerced
or induced by abusive police tactics. To a large extent, these concerns have been
undercut by . . . the development of . . . doctrines relating to the voluntariness of
confessions which limit the opportunity for overzealous law enforcement. These
developments make it difficult to conceive what additional function the corpus delicti
rule still serves in this context.” (quotation marks omitted)). Defendant was not under
arrest at the time of his interview, but rather traveled “on his own” to the police
department in order to speak with Detective Doughty. Nor does the record otherwise
indicate that Defendant’s confession was involuntary or the product of coercion. Thus,
the trustworthiness of Defendant’s confession to at least three separate instances of
vaginal intercourse with the victim is “bolstered by the evidence that [he] made a
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voluntary decision to confess” to these crimes. Cox, 367 N.C. at 154, 749 S.E.2d at
277.
In addition, according to Detective Doughty, Defendant admitted that he
engaged in vaginal intercourse with the victim “on at least three occasions that he
could account for,” evincing Defendant’s appreciation and understanding of the
importance that his statement be accurate. (Emphasis added). The trustworthiness
of Defendant’s extrajudicial confession is further reinforced by the fact that
Defendant had ample opportunity to commit these crimes, in that Defendant was
living in the victim’s home during the relevant time frame. See Parker, 315 N.C. at
236, 337 S.E.2d at 495 (“[S]ubstantial independent evidence tending to establish [the]
trustworthiness [of the accused’s confession] includ[es] facts that tend to show the
defendant had the opportunity to commit the crime.”). Finally, and most significantly,
the undisputed fact that Defendant fathered the victim’s child unequivocally
corroborated Defendant’s statement that he had, in fact, engaged in vaginal
intercourse with her. We are satisfied that the “strong corroboration” of Defendant’s
confession in this respect sufficiently establishes the trustworthiness of his
concurrent statement regarding the number of instances that he had sexual
intercourse with the victim.
Accordingly, we conclude that there was substantial independent evidence to
support the trustworthiness of Defendant’s extrajudicial confession that he engaged
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in vaginal intercourse with the victim “on at least three occasions,” and therefore, the
corpus delicti rule is satisfied. Defendant’s confession constitutes substantial
evidence that he committed three counts of statutory rape against the victim, and
thus the trial court did not err in denying Defendant’s motion to dismiss.
II. Foreign Birth Certificate
Defendant next challenges the trial court’s admission of the victim’s Honduran
birth certificate.
To establish the victim’s age pursuant to N.C. Gen. Stat. § 14-27.23(a), the
State introduced a purported copy of the victim’s Honduran birth certificate, which
was obtained from the victim’s school file (State’s Exhibit 3). State’s Exhibit 3
indicated that the victim was born on 15 September 2003, rendering her 12 years old
when the alleged incidents occurred. Though not admitted for the purpose of
establishing her age, Detective Doughty testified that the initial incident report also
identified the victim’s birth date as 15 September 2003. Detective Doughty opined
that the victim “looked to be 10 or 11 years old” when he spoke with her on 1
December 2016. The photographs taken of the victim by Detective Doughty on the
day of the interview were also admitted into evidence.
Defendant objected to the admission of the copy of the victim’s Honduran birth
certificate on authentication and hearsay grounds. After an extensive colloquy, the
trial court overruled Defendant’s objections and admitted State’s Exhibit 3 into
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evidence. On appeal, Defendant reasserts both grounds for his objection and contends
that the admission of State’s Exhibit 3 constitutes reversible error. We consider each
argument in turn.
a. Authentication
Defendant first argues that the copy of the victim’s Honduran birth certificate
was not properly authenticated because (1) “the witness whom the State used to try
and authenticate the document did not have the requisite knowledge to authenticate
it under Rule 901; and (2) the document was not self-authenticating under Rule
902(3).” We conclude that the document was properly authenticated.
“A trial court’s determination as to whether a document has been sufficiently
authenticated is reviewed de novo on appeal as a question of law.” State v. Allen, ___
N.C. App. ___, ___, 812 S.E.2d 192, 195, disc. review denied, 371 N.C. 449, 817 S.E.2d
202 (2018). “Under a de novo review, the court considers the matter anew and freely
substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362
N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quotation marks omitted).
“Pursuant to Rule 901 of the North Carolina Rules of Evidence, every writing
sought to be admitted must first be properly authenticated.” State v. Ferguson, 145
N.C. App. 302, 312, 549 S.E.2d 889, 896, disc. review denied, 354 N.C. 223, 554 S.E.2d
650 (2001). While the Rules of Evidence provide a multitude of methods by which
evidence may be properly authenticated, see generally N.C. Gen. Stat. § 8C-1, Rules
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901(b), 902 (2017), the ultimate inquiry for the trial court is whether there exists
“evidence sufficient to support a finding that the matter in question is what its
proponent claims.” Id. § 8C-1, Rule 901(a). Thus, “[i]t [is] not error for the trial court
to admit . . . evidence if it could reasonably determine that there was sufficient
evidence to support a finding that the matter in question is what its proponent
claims.” State v. Crawley, 217 N.C. App. 509, 516, 719 S.E.2d 632, 637 (2011)
(quotation marks omitted), disc. review denied, 365 N.C. 553, 722 S.E.2d 607 (2012).
The trial court’s function “is to serve as gatekeeper in assessing whether the
proponent has offered a satisfactory foundation from which the [finder of fact] could
reasonably find that the evidence is authentic.” State v. Ford, 245 N.C. App. 510, 519,
782 S.E.2d 98, 105 (2016) (quotation marks omitted). “[A] prima facie showing, by
direct or circumstantial evidence, . . . is enough.” State v. Mercer, 89 N.C. App. 714,
716, 367 S.E.2d 9, 11 (1988). Once that threshold is met, it is for the factfinder to
determine the appropriate weight and credibility that the evidence ought to be given.
Id. Indeed, defendants are always “free to introduce any competent evidence relevant
to the weight or credibility” of the evidence. Crawley, 217 N.C. App. at 516, 719 S.E.2d
at 637.
Here, other than the fact that the birth certificate offered into evidence was
not an original, there is nothing in the record to indicate that State’s Exhibit 3 was
forged or otherwise inauthentic. The document appears to bear the signature and seal
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of the Honduran Municipal Civil Registrar, and Ms. Vaughan testified that the school
personnel “wouldn’t have made a copy [of the victim’s birth certificate] unless we had
the original.” Moreover, Detective Doughty later testified that the incident report had
“identified [the victim] as having a date of birth of September 15, 2003.”1 See Santora,
McKay & Ranieri v. Franklin, 79 N.C. App. 585, 587, 339 S.E.2d 799, 801 (1986) (“[I]t
is not necessary that proof of the [authentication] be made before the introduction of
the evidence . . . .”).
We conclude that the combination of these circumstances sufficiently
established the requisite prima facie showing to allow the trial court, as factfinder,
to reasonably determine that State’s Exhibit 3 was an authentic copy of the victim’s
Honduran birth certificate. Accordingly, Defendant’s argument on this basis is
overruled.
b. Hearsay
Defendant also argues that State’s Exhibit 3 “was inadmissible hearsay
because it lacked sufficient ‘trustworthiness’ to satisfy Rule 803(8).” Again, we
disagree.
1 Although Detective Doughty’s testimony was not admitted for the purpose of establishing the
victim’s age, his statements nevertheless corroborate the authenticity of the birth certificate that was
maintained in the victim’s school file.
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“This Court reviews a trial court’s ruling on the admission of evidence over a
party’s hearsay objection de novo.” State v. Hicks, 243 N.C. App. 628, 638, 777 S.E.2d
341, 348 (2015), disc. review denied, 368 N.C. 686, 781 S.E.2d 606 (2016).
“ ‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c). “Hearsay is not admissible except as
provided by statute . . . .” Id. § 8C-1, Rule 802. One such statutory exception is for
“Public Records and Reports.” Id. § 8C-1, Rule 803(8). Under this exception, a
properly authenticated birth certificate is admissible “for purposes of proof of matters
relevant to the information contained” therein. State v. Joyner, 295 N.C. 55, 62, 243
S.E.2d 367, 372 (1978); see also N.C. Gen. Stat. § 8C-1, Rule 803(8). However, the
trial court may decline to admit such evidence if “the sources of information or other
circumstances indicate [a] lack of trustworthiness.” N.C. Gen. Stat. § 8C-1, Rule
803(8). “Guarantees of trustworthiness are based on a consideration of the totality of
the circumstances[,] but only those that surround the making of the statement and
that render the [statement] particularly worthy of belief.” State v. Little, 191 N.C.
App. 655, 666, 664 S.E.2d 432, 439, disc. review denied, 362 N.C. 685, 671 S.E.2d 326(2008).
In the instant case, Defendant argues that “[t]here was simply no sound basis
for determining that a photocopied document contained in a cumulative school file
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that was given to an unknown person by another unknown person established any
measure of trustworthiness.” However, as explained above, there are no
circumstances in the instant case that would suggest that the birth date revealed on
State’s Exhibit 3 lacked trustworthiness. Moreover, there was additional evidence
presented that supported the victim’s age as provided in State’s Exhibit 3, including
the photographs that were taken of the victim at the time of her pregnancy, as well
as Detective Doughty’s testimony that the victim “looked to be 10 or 11 years old” at
the time he interviewed her. In fact, in finding Defendant guilty of three counts of
statutory rape of a child, the trial court stated: “I just can’t—could not follow the
defendant’s argument given the fact that one, obviously, these photographs, this is a
young child. I mean, this is not a 16 year old. This is not a child who has reached
majority.”
Under these circumstances, we conclude that the statement of the victim’s
birth date contained in State’s Exhibit 3, which was properly authenticated, was
sufficiently trustworthy, and was therefore admissible as a public record.
Accordingly, the trial court did not err by admitting State’s Exhibit 3 into evidence.
III. Satellite-Based Monitoring
Lastly, Defendant argues that the trial court erred in ordering that he enroll
in satellite-based monitoring for the remainder of his natural life upon his release
from prison.
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Defendant did not file written notice of appeal from the trial court’s order
enrolling him in satellite-based monitoring, as required by Rule 3 of our Rules of
Appellate Procedure. See State v. Dye, ___ N.C. App. ___, ___, 802 S.E.2d 737, 741
(2017) (“This Court has interpreted [satellite-based monitoring] hearings and
proceedings as civil, as opposed to criminal, actions, for purposes of appeal. Therefore,
a defendant must give written notice of appeal pursuant to N.C. R. App. P. 3(a), from
a[] [satellite-based monitoring] proceeding.” (quotation marks omitted)).
Nevertheless, Defendant filed a petition for writ of certiorari asking this Court to
review the trial court’s conclusion that “Satellite Based Monitoring in this case is not
an unreasonable search under law.” Defendant argues that such a conclusion was
erroneous “in the absence of any evidence from the State that lifetime [satellite-based
monitoring] was a reasonable Fourth Amendment search.” Indeed, the State
presented no such evidence.
However, in addition to his failure to file written notice of appeal, Defendant
made no argument before the trial court at his sentencing hearing that the satellite-
based monitoring constituted an unreasonable Fourth Amendment search. Thus,
because “constitutional errors not raised by objection at trial are deemed waived on
appeal,” State v. Bursell, ___ N.C. App. ___, ___, 813 S.E.2d 463, 465 (2017),
Defendant essentially “asks this Court to take two extraordinary steps to reach the
merits, first by issuing a writ of certiorari to hear [his] appeal, and then by invoking
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Rule 2 of the North Carolina Rules of Appellate Procedure to address his unpreserved
constitutional argument.” State v. Bishop, ___ N.C. App. ___, ___, 805 S.E.2d 367, 369
(2017), disc. review denied, 370 N.C. 695, 811 S.E.2d 159 (2018).
Defendant, however, directs our attention to N.C. Gen. Stat. § 15A-1446 and
the line of cases standing for the proposition that “when a defendant asserts that a
‘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,’
appellate review of such errors may be obtained regardless of whether an objection
was made at trial.” Dye, ___ N.C. App. at ___, 802 S.E.2d at 742 (original alteration
omitted) (quoting N.C. Gen. Stat. § 15A-1446(d)(18)); see id. at n.2 (noting also that
“this Court has held, in a recent unpublished opinion, that N.C.G.S. § 15A-1446(d)(18)
preserved a defendant’s right to appeal a[] [satellite-based monitoring] order when
the defendant failed to object at the [satellite-based monitoring] hearing” (citing State
v. Egan, 245 N.C. App. 567, 782 S.E.2d 580 (2016) (unpublished))). In other words,
although satellite-based monitoring is a “civil, regulatory scheme,” State v. Hunt, 221
N.C. App. 48, 56, 727 S.E.2d 584, 590, disc. review denied, 366 N.C. 390, 732 S.E.2d
581 (2012), rather than a “criminal punishment,” id. at 57, 727 S.E.2d at 591,
Defendant appears to suggest that his constitutional challenge thereto is nonetheless
preserved by virtue of the error having occurred at his sentencing hearing. Thus,
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according to Defendant, this Court need only grant certiorari; his Fourth Amendment
challenge is automatically preserved.
Defendant’s argument is unavailing. This Court is bound by the precedent of
our Supreme Court, which quite broadly and plainly has held:
Although [a] defendant’s nonconstitutional sentencing
issues are preserved without contemporaneous objection
. . . , constitutional issues are not. . . . This is true even
when a sentencing issue is intertwined with a
constitutional issue. [If a] defendant failed to argue to the
sentencing court that the sentence imposed violates the
[United States Constitution], she may not raise that
argument on appeal.
State v. Meadows, ___ N.C. ___, ___, 821 S.E.2d 402, 407 (2018) (internal citations
omitted); see also State v. Grady, ___ N.C. App. ___, ___, 817 S.E.2d 18, 23 (2018) (“[A]
defendant’s Fourth Amendment [satellite-based monitoring] challenge must be
properly asserted at the hearing in order to preserve the issue for appeal.”).
Accordingly, this Court cannot review Defendant’s Fourth Amendment argument
without invoking Rule 2.
We emphasize that this Court “must be cautious in our use of Rule 2 not only
because it is an extraordinary remedy intended solely to prevent manifest injustice,
but also because ‘inconsistent application’ of Rule 2 itself leads to injustice when some
similarly situated litigants are permitted to benefit from it but others are not.”
Bishop, ___ N.C. App. at ___, 805 S.E.2d at 370 (quoting State v. Hart, 361 N.C. 309,
317, 644 S.E.2d 201, 206 (2007)). Here, because Defendant is no different from other
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defendants who failed to preserve a Fourth Amendment challenge to their enrollment
in satellite-based monitoring below, we decline to invoke Rule 2. See, e.g., State v.
Cozart, ___ N.C. App. ___, 817 S.E.2d 599 (2018); Bishop, ___ N.C. App. ___, 805
S.E.2d 367. Consequently, we deny Defendant’s petition for writ of certiorari. See
State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (“A petition for the writ
must show merit . . . .”), cert. denied, 362 U.S. 917, 4 L. Ed. 2d 738 (1960); Bishop, ___
N.C. App. at ___, 805 S.E.2d at 370.
Conclusion
Because there is substantial independent evidence tending to establish the
trustworthiness of Defendant’s extrajudicial confession to three counts of statutory
rape of a child, the corpus delicti rule is satisfied, and we affirm the trial court’s denial
of Defendant’s motion to dismiss. Furthermore, the trial court did not err in admitting
into evidence the purported copy of the victim’s Honduran birth certificate.
Accordingly, we affirm the trial court’s judgment entered upon Defendant’s
convictions for three counts of statutory rape of a child. We deny Defendant’s petition
for writ of certiorari and dismiss his appeal from the trial court’s order enrolling him
in satellite-based monitoring.
AFFIRMED IN PART; DISMISSED IN PART.
Judge HAMPSON concurs.
Judge BERGER concurs in result only.
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