State v. SheridanÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-312
Filed: 5 February 2019
Wake County, Nos. 14 CRS 225411, 225413, 15 CRS 39, 1602, 204121, 204124-25
STATE OF NORTH CAROLINA
v.
MICHAEL ANTHONY SHERIDAN
Appeal by defendant from judgments entered 24 March 2017 by Judge Reuben
F. Young in Wake County Superior Court. Heard in the Court of Appeals 17 January
2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Sherri Horner
Lawrence, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt
Orsbon, for defendant-appellant.
TYSON, Judge.
Michael Anthony Sheridan (“Defendant”) appeals from judgments entered
upon a jury’s verdicts and convictions of four counts of first-degree sexual exploitation
of a minor, two counts of statutory rape, and one count of sexual offense in a parental
role. We find no error in part and remand for appropriate findings on Defendant’s
pro se speedy trial motion and the trial court’s satellite-based monitoring (“SBM”)
determination.
I. Background
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Opinion of the Court
T.S. (“Tonya”) met Defendant in March 2013, in the Raleigh neighborhood
where they both lived. Tonya was fourteen years old and Defendant was forty-four.
Defendant told Tonya about and introduced her to his daughter, who was around the
same age. Tonya began “hanging out” with Defendant’s daughter, and Defendant was
“always” around.
On 14 March 2013, Defendant asked Tonya if she wanted to “hang out” at his
house the next day, while she waited for his daughter to get home. The next day,
Defendant told Tonya his daughter was home, and she should come over.
Once she entered his house, Defendant told Tonya they were alone. Defendant
took Tonya into his bedroom, began kissing her, removed their clothes, and engaged
in her first vaginal intercourse. Defendant and Tonya engaged in vaginal intercourse
and fellatio “every day” thereafter, and within a week or two Tonya came to believe
she was “in love” with Defendant.
Tonya moved with her family to Hertford County in November 2013.
Defendant continued engaging in sexual relations with Tonya after the move, when
she returned to Raleigh with her mother to visit in the area. In June 2014, Tonya
moved back to Raleigh and lived with Defendant. Defendant had told Tonya she could
choose where she wanted to live after she turned sixteen years old. Tonya told her
mother Defendant had offered her a job in Raleigh, and she was going to live with
and work for him.
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Opinion of the Court
Defendant and Tonya shared a bed when she moved in with him and
immediately resumed their sexual relationship. Their near daily sexual activity
occurred before and after Tonya’s sixteenth birthday. Between 2013 and 2014, Tonya
used Defendant’s phone at his request to take four or five nude photographs of herself.
Defendant purchased food and clothing for Tonya and gave her a bank card to use for
expenses.
On 27 October 2014, Defendant and Tonya argued. At Tonya’s request, her
grandmother dropped her off at her mother’s boyfriend’s house in Harnett County.
Tonya’s mother’s boyfriend refused to allow Tonya to stay, and she returned to
Defendant’s house in a taxicab late that night.
When she arrived, Tonya found Defendant naked in bed with another woman.
Tonya requested Defendant to pay for her cab fare, but he refused. An argument
ensued and the police were called. The cab driver retained all of Tonya’s luggage and
belongings for the unpaid fare. Tonya was arrested and taken to jail for failing to pay
the cab fare.
Tonya was released from jail at approximately 3:00 a.m. on 28 October 2014
and walked back to Defendant’s home from the jail. The other woman was still at the
house. Defendant and Tonya argued, and the other woman was driven home by
Defendant’s housemate. Tonya and Defendant slept in the same bedroom, but upon
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Opinion of the Court
waking continued to argue, mainly about access to a phone. Defendant had provided
Tonya with a phone when she had moved in, but he had taken it away from her.
Tonya attempted to retrieve the phone while Defendant was in the shower, but
Defendant allegedly began to physically assault her. Tonya grabbed a beer bottle and
struck him on the head. Defendant escalated the assault, and when Tonya fell to the
floor, she saw a knife and grabbed it. Defendant and Tonya grappled with the knife,
but she regained control of it and stabbed Defendant. The assaults continued, and
Defendant’s mother called 911.
Officers arrived and Tonya was transported to the hospital and underwent a
sexual assault examination. Tonya told police officers that Defendant had raped her
that day and had been sexually active with her prior to that occurrence. Tonya was
placed into foster care. Soon after, Tonya learned she was pregnant again and gave
birth to a son. She had previously aborted an earlier pregnancy. Subsequent DNA
testing confirmed to a confidence interval of 99% that Defendant was the father of
the child.
Defendant was indicted for four counts of first-degree sexual exploitation of a
minor, two counts of statutory rape, one count of sexual offense in a parental role, one
count of indecent liberties with a minor, and of attaining habitual felon status.
Defendant had retained counsel, but filed a pro se motion for a speedy trial on 14
April 2015, while being incarcerated in the Wake County Jail for approximately six
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Opinion of the Court
months. Even though Defendant was represented by counsel, the trial court heard
and denied the pro se motion.
Defendant’s case was called for trial on 20 March 2017. The jury’s verdict
found Defendant guilty of the four counts of sexual exploitation, two counts of
statutory rape, and one count of sexual offense in a parental role. The State dismissed
the charges of indecent liberties and Defendant having attained habitual felon status.
Defendant was sentenced to two consecutive sentences of 317-441 months, one
consecutive sentence of 33-100 months, and four consecutive sentences of 96-176
months. He was also ordered to register as a sex offender and enroll in SBM for the
remainder of his natural life.
Defendant gave oral notice of appeal in open court, but did not enter written
notice of appeal of the civil SBM order. Defendant has subsequently filed a petition
for writ of certiorari to seek review of the civil SBM.
II. Jurisdiction
An appeal of right of Defendant’s criminal convictions lies with this Court
pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444 (2017).
III. Issues
Defendant argues the trial court erred by (1) denying his motion to dismiss the
charge of sexual offense in a parental role; (2) denying his motion for speedy trial;
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Opinion of the Court
and, (3) denying his motion for mistrial. Defendant also asserts his counsel failed to
provide effective assistance.
IV. Motion to Dismiss
Defendant asserts the trial court erred in denying his motion to dismiss the
charge of sexual offense in a parental role. He argues the State presented insufficient
evidence a parent-child relationship existed between Defendant and Tonya. We
disagree.
A. Standard of Review
“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.” State v. Sweat, 366 N.C. 79, 84, 727 S.E.2d 691,
695 (2012) (alteration original) (citation and internal quotation marks omitted). The
evidence is to be considered and reviewed in the light most favorable to the State,
including all reasonable inferences therefrom. State v. Powell, 299 N.C. 95, 99, 261
S.E.2d 114, 117 (1980).
“The evidence need only give rise to a reasonable inference of guilt in order for
it to be properly submitted to the jury for a determination of defendant’s guilt beyond
a reasonable doubt.” State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). A
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Opinion of the Court
motion to dismiss should only be granted when the evidence presented raises no more
than a “suspicion of guilt.” Id.
Whether the State presented sufficient evidence is a question of law, which
this Court reviews de novo. State v. Cox, 367 N.C. 147, 150-51, 749 S.E.2d 271, 274-
75 (2013) (citation omitted).
B. Analysis
Defendant was charged with violating N.C. Gen. Stat. § 14-27.7(a), which
prohibits a person “who has assumed the position of a parent in the home of a minor
victim [from] engag[ing] in vaginal intercourse or a sexual act with a victim who is a
minor residing in the home.” N.C. Gen. Stat. § 14-27.7(a) (2015). This statute was
recodified as § 14-27.31, but the relevant language is virtually identical. 2015 N.C.
Sess. Laws 181, § 13(a).
To survive a motion to dismiss, the State must have presented evidence that
Defendant “had (1) assumed the position of a parent in the home, (2) of a minor victim,
and (3) engaged in a sexual act with the victim residing in the home.” State v. Oakley,
167 N.C. App. 318, 322, 605 S.E.2d 215, 218 (2004) (citation omitted). Defendant
asserts the factor at issue in this case is whether or not Defendant assumed a
“parental role” in his relationship with Tonya.
This Court has identified a “parental role” to include evidence of “emotional
trust, disciplinary authority, and supervisory responsibility.” State v. Bailey, 163 N.C.
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Opinion of the Court
App. 84, 93, 592 S.E.2d 738, 744 (2004). The most significant of these factors is
whether the defendant and the minor “had a relationship based on trust that was
analogous to that of a parent and child.” Id. at 94, 592 S.E.2d at 745. It is not
necessary for the defendant to have maintained a romantic relationship with the
child’s parent or to exercise any legal rights over the child in order to be prosecuted
under the statute. Id.
Defendant argues Tonya was over sixteen years old and she engaged in a
“consensual” relationship with him. However, the statute clearly indicates consent
is not a defense. N.C. Gen. Stat. § 14-27.31(c) (2017). Further, this Court has found
a parental role existed between a sixteen-year-old victim and a twenty-three-year-old
defendant. Oakley, 167 N.C. App. at 319, 605 S.E.2d at 216. The sexual relationship
began when the victim was sixteen, and he began residing with the defendant when
he was seventeen. Id. at 319, 605 S.E.2d at 216-17.
Both prior to and during the time the victim was living with him, the defendant
had “paid for all of [the victim’s] support . . . including food, shelter, gifts and spending
money.” Id. at 323, 605 S.E.2d at 219. The defendant, Oakley, held himself out to be
the victim’s temporary custodian to the victim’s parole officer. Id. Evidence at trial
indicated the defendant was a friend of the family. Id. at 323, 605 S.E.2d at 218.
Similar to the defendant in Oakley, Defendant paid for Tonya’s care and
support at a time she was legally unable to work and maintain herself. He also made
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Opinion of the Court
numerous representations to others of his parental and supervisory role over Tonya:
he indicated to police he was her “godfather,” represented to a friend he was trying
to help Tonya out and get her enrolled in school, and told his other girlfriends Tonya
was his “daughter.” While there was no indication Defendant was a friend of Tonya’s
family, there is evidence he initiated a relationship of trust by approaching Tonya
with references to his daughter, who was the same age, and being “always” present
when the two girls were “hanging out” at his house.
Viewed in the light most favorable to the State, sufficient evidence of
Defendant’s exercise of a parental role over Tonya was presented to survive
Defendant’s motion to dismiss. See Powell, 299 N.C. at 99, 261 S.E.2d at 117. We find
no error in the trial court’s denial of Defendant’s motion to dismiss this charge.
V. Motion for Speedy Trial
Defendant argues the trial court erred in denying his motion for speedy trial
without addressing any of the Barker v. Wingo factors. We remand for appropriate
findings.
A. Standard of Review
The appeal of a denial of a speedy trial motion raises a question of
constitutional law, which is subject to de novo review. State v. Johnson, __ N.C. App.
__, __, 795 S.E.2d 126, 131 (2016) (citation omitted).
B. Analysis
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Opinion of the Court
The State argues this issue is not properly before this Court. Defendant filed
his pro se motion for a speedy trial on 14 April 2015. At that time, Defendant was
represented by retained counsel. It is well established that a defendant cannot file
motions on his own behalf and also be represented by counsel. State v. Williams, 363
N.C. 689, 700, 686 S.E.2d 493, 501 (2009). Nothing in the record indicates
Defendant’s appointed trial counsel adopted his pro se motion:
my client I believe wishes to address the Court prior to
going further. He’s indicated to me, as I heard, his own
motions that he is wanting to make.
The defendant in Williams argued the trial court erred by declining to rule on
his pro se motions, including his pro se motion for speedy trial. Id. The Supreme
Court found this refusal to rule on the defendant’s pro se motion was not error. Id.
Unlike in Williams, the trial court in the present case ruled on Defendant’s pro se
motion for speedy trial, stating, “the defendant’s motion for a speedy trial is hereby
denied.”
Where a trial court has specifically considered and denied a defendant’s
constitutional argument, this Court has granted review. E.g., In re Hall, 238 N.C.
App. 322, 329, 768 S.E.2d 39, 44 (2014) (concerning ex post facto violation); State v.
Kirkwood, 229 N.C. App. 656, 665-66, 747 S.E.2d 730, 736-37 (2013) (trial court’s sua
sponte ruling on double jeopardy issue gave this Court jurisdiction over the issue on
appeal). Defendant’s argument is properly before this Court. Because this is a
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Opinion of the Court
question of law, subject to de novo review, we consider the matter anew. Johnson, __
N.C. App. at __, 795 S.E.2d at 131.
A defendant is guaranteed the right to a speedy trial under the Constitution of
the United States and the North Carolina Constitution. U.S. Const. amend. VI; N.C.
Const. art. I, § 18. The Supreme Court of the United States set out a four-factor
balancing test to determine whether a defendant’s right to a speedy trial under the
Constitution of the United States was violated. Barker v. Wingo, 407 U.S. 514, 530,
33 L. Ed. 2d 101, 117 (1972).
Reviewing courts are to consider the “[l]ength of the delay, the reason for the
delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id.
North Carolina adopted this four-factor balancing test to analyze purported speedy
trial violations under our state’s constitution. State v. Grooms, 353 N.C. 50, 62, 540
S.E.2d 713, 721 (2000).
The “length of the delay is not per se determinative” of whether a defendant’s
right to a speedy trial has been violated. Id. The Supreme Court of the United States
has noted a delay becomes “presumptively prejudicial” as it approaches one year,
which is enough to warrant further analysis. Doggett v. United States, 505 U.S. 647,
652 n.1, 120 L. Ed. 2d 520, 528 n.1 (1992).
Here, the twenty-eight months’ delay between Defendant’s arrest and trial is
enough to trigger further analysis. While the trial court was not obligated to consider
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Opinion of the Court
Defendant’s pro se motion for speedy trial while he was represented by counsel,
because it did so, it erred by not considering all the Barker factors and making
appropriate findings. The record on appeal is insufficiently developed for this
analysis and determination to be made by this Court.
“A full evidentiary hearing is required in order for the superior court to hear
and make an appropriate assessment of Defendant’s arguments. If the superior court
ultimately concludes Defendant’s right to a speedy trial was violated, the only remedy
is dismissing the indictment and vacating those convictions.” State v. Wilkerson, __
N.C. App. __, __, 810 S.E.2d 389, 396 (2018). We remand to the trial court for a proper
Barker v. Wingo analysis and appropriate findings.
VI. Motion for Mistrial
Defendant argues the trial court erred by denying his motion for mistrial when
an expert witness opined that Tonya was neglected because her mother allowed her
to stay with Defendant, “a person who had a history of criminality.” We disagree.
A. Standard of Review
A trial court is required to call a mistrial “if there occurs during the trial an
error or legal defect in the proceedings . . . resulting in substantial and irreparable
prejudice to the defendant’s case.” N.C. Gen. Stat. § 15A-1061 (2017). Whether or not
there has been “substantial and irreparable prejudice” is a matter that rests within
the discretion of the trial court. State v. Mills, 39 N.C. App. 47, 50, 249 S.E.2d 446,
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448 (1978), cert. denied, 296 N.C. 588, 254 S.E.2d 33 (1979). “[A]bsent a showing of
abuse of that discretion, the decision of the trial court will not be disturbed on appeal.”
Id.
B. Analysis
Dr. Elizabeth Witman, the director of SAFEchild Advocacy Center, testified
about Tonya’s medical evaluation and diagnostic interview. When asked whether she
had any concerns about Tonya’s biological family, Dr. Witman replied:
I did. We always try to look very carefully at those issues
and it was my opinion sometimes I’m not describing all
these motivation to why a child’s been mission [sic] treated
or neglected. It could be to a number of factors. It doesn’t
necessarily always mean ill intention, but I think because
of her mother’s homelessness and probably financial
struggles and some other issues it was my opinion that she
was neglected by being allowed to live with a person who
had a history of criminality.
Defense counsel immediately moved to strike, and the trial court sustained the
objection and instructed the jury:
Ladies and gentlemen, with regard to the last remark by
this witness you are to disregard that remark and not
consider it as part of your consideration towards a
deliberation to a verdict in this case.
The trial court denied defense counsel’s motion for mistrial.
“When the trial court withdraws incompetent evidence and instructs the jury
not to consider it, any prejudice is ordinarily cured.” State v. Black, 328 N.C. 191, 200,
400 S.E.2d 398, 404 (1991). Defendant argues some evidence “is so inherently
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prejudicial that its influence on the jury cannot be cured with an instruction to
disregard it” and cites to State v. Hunt, 287 N.C. 360, 215 S.E.2d 40 (1975), and State
v. Aycoth, 270 N.C. 270, 154 S.E.2d 59 (1967), for support.
In Hunt, evidence of the defendant’s “police record,” and that he was on
probation “for possession of marijuana and assault” was improperly introduced
during cross-examination of a defense witness. 287 N.C. at 372-73, 215 S.E.2d at 48.
Shortly thereafter, court adjourned for the day. Id. at 373, 215 S.E.2d at 48. Defense
counsel moved for a mistrial at the beginning of court the next day. Id. The trial court
denied that motion, but instructed the jury to disregard the testimony. Id.
The Supreme Court found “the instructions then given were not specific as to
the content of the challenged questions, and by this time the evidence must have
found secure lodgment in the minds of the jurors.” Id. at 376, 215 S.E.2d at 50. The
Court also limited its holding to the specific “circumstances of [that] capital case.” Id.
at 376, 215 S.E.2d at 51.
In Aycoth, during cross-examination, a State’s witness revealed the defendant
had been previously arrested on another charge and had been indicted for murder.
270 N.C. at 272, 154 S.E.2d at 60. Defense counsel immediately objected and moved
to strike, and the trial court allowed the motion and instructed the jury to not
“consider” the previous statements. Id. Defense counsel moved for a mistrial after
the State rested, which was denied. Id. The Supreme Court found “the incompetent
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evidence to the effect [the defendant] had been or was under indictment for murder
was of such serious nature that its prejudicial effect was not erased by the court’s
quoted instruction.” Id. at 273, 154 S.E.2d at 61.
Unlike in Hunt, the trial court immediately sustained the objection and
instructed the jury “to disregard that remark and not consider it.” Further, and
unlike in Aycoth, the disclosure of Defendant’s history of criminality was vague and
did not suggest Defendant had previously been convicted of anything. Defendant has
failed to show the trial court abused its discretion in denying Defendant’s motion for
mistrial. Defendant’s arguments are overruled.
VII. Ineffective Assistance of Counsel
Defendant argues he was denied effective assistance of counsel when his
attorney stated it would be “pointless” to proceed with a SBM hearing. This
statement came after the prosecutor acknowledged the cumulative length of
Defendant’s sentences might make a SBM determination “a moot point,” but was
prepared to present evidence nonetheless. Because the trial court failed to comply
with statutory mandates, we need not reach the merits of Defendant’s argument.
We initially address whether this issue is properly before this Court.
Defendant did not file written notice of appeal for the SBM determination, as required
by N.C. R. App. P. 3. Defendant filed a petition for writ of certiorari, requesting this
Court to consider his arguments on the merits. This Court has previously granted
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petitions for certiorari when a defendant has given oral notice of appeal, but failed to
comply with Rule 3 for an appeal of the SBM determination. State v. Dye, __ N.C.
App. __, __, 802 S.E.2d 737, 741 (2017); State v. Green, 229 N.C. App. 121. 128, 746
S.E.2d 457, 464 (2013).
A writ of certiorari “may be issued in appropriate circumstances by either
appellate court to permit review of the judgments and orders of trial tribunals when
the right to prosecute an appeal has been lost by failure to take timely action[.]” N.C.
R. App. P. 21(a)(1). Defendant argues issuing a writ of certiorari is appropriate
because the trial court erroneously concluded Defendant’s convictions were
“aggravated offenses” under N.C. Gen. Stat. § 14-208.6(1a) (2017). Aggravated
offenses include those where a defendant (1) engaged in a penetrative sexual act with
a victim of any age “through the use of force or the threat of serious violence” or (2)
engaged in a penetrative sexual act with a child under twelve. Id. We agree, grant
Defendant’s petition, and issue the writ.
When a defendant is convicted of a reportable offense under the sex offender
registration scheme, the district attorney is required to present evidence at the
sentencing phase of whether: (1) the defendant has been classified as a sexually
violent predator; (2) the defendant is a recidivist; (3) the conviction is an aggravated
offense; (4) the sexual act or rape was of a victim under thirteen and the defendant
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was an adult; or, (5) the offense involved physical, mental, or sexual abuse of a minor.
N.C. Gen. Stat. § 14-208.40A(a) (2017).
In this case, no evidence was presented prior to or to support the trial court’s
determination that Defendant would be subject to SBM for the remainder of his life.
We vacate the order requiring Defendant to enroll in SBM for the remainder of his
life, and remand for proper analysis and determination under N.C. Gen. Stat. § 14-
208.40A. See State v. Davison, 201 N.C. App. 354, 364, 689 S.E.2d 510, 517 (2009).
VIII. Conclusion
The State presented sufficient evidence of Defendant’s parental role. The trial
court did not err by denying Defendant’s motion to dismiss the charge of sexual
offense by substitute parent. The trial court did not abuse its discretion in denying
Defendant’s motion for mistrial.
The trial court erred in failing to conduct a proper analysis of the Barker v.
Wingo factors prior to denying Defendant’s pro se motion for speedy trial. We remand
this issue to the trial court for an appropriate analysis and findings.
We vacate Defendant’s SBM determination and remand for the trial court to
conduct a proper determination in accordance with N.C. Gen. Stat. § 14-208.40A. It
is so ordered.
NO ERROR IN PART, VACATED IN PART, AND REMANDED.
Judges ZACHARY and COLLINS concur.
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