               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
                                STATE V. SHERIDAN

                                    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.



                                           -2-
                                 STATE V. SHERIDAN

                                  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




                                         -3-
                                  STATE V. SHERIDAN

                                   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



                                          -4-
                                  STATE V. SHERIDAN

                                   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;




                                          -5-
                                  STATE V. SHERIDAN

                                   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




                                          -6-
                                   STATE V. SHERIDAN

                                   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.



                                          -7-
                                    STATE V. SHERIDAN

                                     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



                                            -8-
                                  STATE V. SHERIDAN

                                  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



                                         -9-
                                 STATE V. SHERIDAN

                                  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



                                         - 10 -
                                 STATE V. SHERIDAN

                                  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



                                         - 11 -
                                 STATE V. SHERIDAN

                                  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,



                                         - 12 -
                                   STATE V. SHERIDAN

                                     Opinion of the Court



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


                                            - 13 -
                                  STATE V. SHERIDAN

                                   Opinion of the Court



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



                                          - 14 -
                                  STATE V. SHERIDAN

                                   Opinion of the Court



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



                                          - 15 -
                                  STATE V. SHERIDAN

                                   Opinion of the Court



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




                                          - 16 -
                                   STATE V. SHERIDAN

                                   Opinion of the Court



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.



                                          - 17 -
