              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-13

                                Filed: 19 March 2019

Wake County, No. 14 CRS 220638

STATE OF NORTH CAROLINA

             v.

JONATHAN LOPEZ


      Appeal by Defendant from judgment and order entered 30 March 2017 by

Judge Reuben F. Young in Superior Court, Wake County. Heard in the Court of

Appeals 14 January 2019.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General
      Matthew Tulchin, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
      Gomez and Assistant Appellate Defender James R. Grant, for Defendant.


      McGEE, Chief Judge.


      Jonathan Lopez (“Defendant”) appeals from judgment entered after a jury

found him guilty of second-degree rape. Defendant argues the trial court erred by (1)

denying his motion to dismiss the charge for insufficient evidence, (2) excluding

testimony of his expert witness, and (3) providing inadequate jury instructions.

Defendant further contends the cumulative effect of these errors deprived him of a

fair trial. We hold the trial court did not err in denying Defendant’s motion to

dismiss, did not prejudicially err in excluding Defendant’s expert witness, and did not
                                         STATE V. LOPEZ

                                        Opinion of the Court



err in its instructions to the jury. As we hold the trial court did not commit prejudicial

error, we hold that Defendant is not entitled to a reversal based on cumulative error.

      Defendant also appeals from the trial court’s order imposing lifetime satellite-

based monitoring (“SBM”).           Defendant argues the trial court erred in ordering

lifetime SBM because the State failed to present evidence that lifetime SBM of

Defendant was a reasonable Fourth Amendment search. We hold that the trial court

erred in ordering lifetime SBM, and reverse the trial court’s order.

                               I. Factual & Procedural History

      Miranda,1 a college student studying business administration in Virginia,

traveled to Raleigh with her friend, Perla, on 4 July 2014 to attend her godmother’s

vow renewal the following day. At the time, Miranda was twenty-two years old and

had been in a relationship with her boyfriend for four-and-a-half years.

      In the days leading up to the vow renewal, Miranda exchanged text messages

with Defendant, a close family friend who lived in Raleigh. Miranda and Defendant

agreed to meet while in Raleigh. Miranda considered Defendant “even as a brother

to [her].” Miranda testified that, on one occasion when Defendant and Miranda were

in their early teens, they kissed during a game of “truth or dare.” Miranda testified

that, on another occasion when they were approximately sixteen years old, Defendant

attempted to “hit on” Miranda, and she “blew it off.” However, with the exception of



      1   We adopt the pseudonym “Miranda” used in the briefs to protect the identity of Miranda.

                                                -2-
                                   STATE V. LOPEZ

                                  Opinion of the Court



those two instances, Miranda and Defendant never engaged in a romantic

relationship.

      The night before the vow renewal, Miranda and Perla drove to Defendant’s

apartment and, on their drive, they drank mixed drinks consisting of vodka and juice.

At approximately 6:00 p.m., they arrived at Defendant’s apartment (hereafter at

times, “the apartment”), which Defendant shared with Jose Oswaldo Palacios-

Martinez (“Lenny”). At the apartment, Miranda drank a Mike’s Hard Lemonade, a

Fireball shot, and a mixed liquor drink. A while after arriving at the apartment,

Miranda, Perla, Defendant, and Lenny decided to go to a club. Lenny drove the group

to the club.

      At the club, Miranda and Perla separated from Defendant and Lenny, and each

had another drink, and danced with each other. In the subsequent hours, Miranda

drank a “Blue Motorcycle” – purchased by Defendant – and one and one-half shots of

tequila. Miranda appeared drunk to Perla. Miranda testified that she had blurry

vision, began to stumble, and was unable to send a text message. Miranda told Perla

that she wanted to leave the club so she could go to sleep. After midnight, Defendant,

Lenny, Perla, and Miranda left the club, and Miranda threw up in the parking lot of

the club. Miranda texted her boyfriend, but was unable to recall any other detail

from the drive back to Defendant’s apartment.




                                         -3-
                                   STATE V. LOPEZ

                                  Opinion of the Court



      Upon arriving back at Defendant’s apartment building, Miranda went up the

stairs to Defendant’s third floor apartment, holding onto the stair rail and wearing

one shoe, and Defendant followed. Perla and Lenny remained in the parking lot, and

Perla began to throw up. Lenny waited with Perla and, once Perla felt better, Lenny

helped her up the stairs. Perla then fell asleep in the living room of the apartment.

      Miranda testified she awoke the following morning at 8:00 a.m. and felt

another person’s leg touching her leg. Miranda realized Defendant was in bed next

to her. Miranda’s shirt was off, her skirt was pushed up to her waist, and her

underwear was on the bed. Miranda testified that her vagina felt sore, as if she had

had sex. Defendant woke up and asked Miranda if she was okay. Miranda ignored

Defendant, grabbed her phone, and ran out of Defendant’s bedroom.            Miranda

testified she had a blurry memory of pushing or kicking someone off of her while she

was sleeping.

      Perla testified she awoke in the morning to hear Miranda frantically asking

why she had been left alone with Defendant.          Miranda then walked out of the

apartment to her car where she began crying. Perla called Miranda’s cell phone, and

Miranda told Perla that she thought “something had happened.”             Perla then

questioned Defendant about what had happened the previous night, and Defendant

assured Perla that nothing had happened. Miranda sent Perla a text message stating




                                         -4-
                                   STATE V. LOPEZ

                                  Opinion of the Court



she wanted to leave, and she returned to the apartment to retrieve her things.

Defendant asked Miranda again if she was okay and offered for her to use his shower.

       Miranda and Perla left Defendant’s apartment and drove to a family friend’s

house. Perla testified that Miranda appeared “frazzled” in the car. Miranda told

Perla that she woke up without her underwear, and Perla convinced Miranda to

return to Defendant’s apartment to confront him.

       Miranda and Perla drove to Defendant’s apartment where, again, Defendant

denied having sex with Miranda. Miranda explained to Defendant that her vagina

felt sore.   Defendant asked to speak with Miranda privately.      Once in private,

Defendant told Miranda that when he entered his bedroom and saw Miranda in his

bed with her skirt pulled up to her waist, he instinctively “wanted to do something.”

He explained that Miranda kicked and pushed him off, so he left her alone.

       Miranda and Perla decided to leave Defendant’s apartment. As they walked

out of the apartment, Defendant invited Miranda and Perla to a party that he was

hosting that night and joked that he would lock Miranda and Perla in his room to

assure nothing bad happened to them. Miranda and Perla drove back to Virginia.

Perla testified that on the drive, Miranda appeared “upset and confused and didn’t

really know where to go or what to do after that.”

       The following afternoon, Perla called Miranda. Perla recommended Miranda

seek medical attention and complete a rape kit, and they agreed to meet at a hospital



                                         -5-
                                  STATE V. LOPEZ

                                 Opinion of the Court



in Woodbridge, Virginia. After waiting hours in the emergency room without being

seen, Perla and Miranda drove to a pharmacy to purchase Plan B.

      Miranda called Defendant on speakerphone from the car and again asked what

had happened on the night of 4 July. Defendant denied anything happened. Miranda

explained that she was parked in front of a hospital, where the doctors and nurses

would be able to ascertain the last time she had sex. Miranda threatened that, if

Defendant had lied to her and her rape kit revealed she had had sexual intercourse,

she would go to the police. Defendant inquired whether Miranda was alone, and

Miranda said yes. Defendant then admitted he had sex with Miranda. Miranda

began to cry and told Defendant she had not given him permission to touch her.

Defendant said, “it’s me. Why would you feel disgusted?” Defendant urged Miranda

not to contact the police. After they hung up the phone, Defendant repeatedly called

and texted Miranda saying, “we need to talk.” Miranda responded one time, saying:

“How could you do this to me? I trusted you. You were considered my friend.”

      After speaking with Defendant, Miranda and Perla returned to the emergency

room, and Miranda completed a rape kit. An off-duty security guard interviewed

Miranda, filled out a police information report, and had Miranda and Perla each fill

out written statements. The case was dispatched to an officer of the Raleigh Police

Department on 7 July 2014.      The officer contacted Miranda, received her oral




                                        -6-
                                    STATE V. LOPEZ

                                   Opinion of the Court



statement, and prepared a report, which he passed on to the Raleigh Police

Department’s Detective Division.

      Detective Corinne McCall (“Detective McCall”) of the Raleigh Police

Department’s Special Victims Unit testified that she was assigned the case on 8 July

2014. Detective McCall contacted Miranda by phone and asked Miranda “to tell [her]

what had happened.” Detective McCall’s testimony regarding Miranda’s story to her

was consistent with Miranda’s testimony at trial. Detective McCall testified that

Miranda’s story remained consistent throughout the course of the investigation.

      Detective McCall testified she interviewed Defendant on 25 July 2014, and

recorded the interview. Initially, Defendant told Detective McCall that, on 5 July,

when Miranda confronted him at his apartment, he told Miranda that the two had

engaged in sexual intercourse the previous night. Defendant also told Detective

McCall that he had not talked to Miranda since that day in his apartment when he

disclosed to her that they had had sex. Defendant later admitted that he actually

first told Miranda that they had had sex during a phone conversation on 6 July 2014.

Detective McCall received Miranda’s phone records, which revealed that Defendant

lied about not contacting Miranda.

      In August 2014, Miranda returned to school.         However, she struggled to

concentrate in class and had periodic emotional outbursts that required her to leave

campus. Although she only had six months left to graduate, she dropped out of school



                                          -7-
                                   STATE V. LOPEZ

                                  Opinion of the Court



approximately three weeks later. Perla testified that, prior to 4 July 2014, Miranda

had been “a very upbeat and a very happy girl”; however, after that date, “[Miranda]

kind of became very depressed.”

      In 2015, Miranda was transported to the hospital after attempting suicide by

cutting her wrists. Miranda attempted suicide a second time by overdosing on pills

and was again transported to the hospital. Miranda subsequently started treatment

with a therapist once a week and was prescribed antidepressants and sleep

medication.

      At trial, Defendant testified on his own behalf. He described his relationship

with Miranda as “friends with benefits.” Defendant testified that, on one occasion,

during a game of “spin the bottle,” Miranda kissed him and danced on top of him and,

on another occasion, Miranda touched his penis.

      Defendant testified that on 4 July 2014, he went to a club with Miranda, Perla,

and Lenny. Defendant could not recall how much alcohol he consumed at the club.

Defendant explained he could not recall any detail about leaving the club or about

the drive back to the apartment because of the three year lapse.

      Defendant further testified that, after returning from the club on the night of

4 July, Defendant went out on his balcony and smoked a cigarette. Defendant entered

his room and saw Miranda sleeping in his bed. Defendant told Miranda to move, as

she was lying on his side of the bed. Miranda woke up and moved over. About thirty



                                         -8-
                                    STATE V. LOPEZ

                                   Opinion of the Court



minutes later, Defendant’s leg touched Miranda’s leg. Defendant put his hand on

Miranda’s back, and Miranda said, “yes.” Defendant then said, “let’s f---,” and they

had sex. The following morning, at approximately 7:00 a.m., Defendant and Miranda

had sex for the second time. Miranda then went to the bathroom and left Defendant’s

apartment.

      Defendant testified that after Miranda came back in the apartment, Miranda

and Perla entered Defendant’s room, and asked Defendant whether he had engaged

in sex with Miranda the previous night.         Defendant denied anything happened.

Defendant testified: “I cannot tell you why at that moment I opted not to tell her.”

Defendant testified when Miranda and Perla returned to his apartment later that

afternoon and again asked him what had transpired, Defendant denied anything

happened, because he “just didn’t know what to do.”

      Defendant was indicted on 20 March 2017 for one count of second-degree rape.

The case came on for hearing 27 March 2017. The jury found Defendant guilty of

second-degree rape on 30 March 2017. Defendant was sentenced to 73-148 months’

imprisonment. Defendant was ordered to register as a sex offender for his lifetime

and to enroll in an SBM program. Defendant appeals.

                  II. Appellate Jurisdiction and Writs of Certiorari

      As an initial matter, this Court’s jurisdiction must be determined. Defendant

has filed two petitions for writ of certiorari; we address each in turn.



                                          -9-
                                    STATE V. LOPEZ

                                   Opinion of the Court



      Defendant was convicted of second-degree rape and sentenced to 73-148

months’ imprisonment on 30 March 2017. After receiving the jury verdict, but prior

to the pronouncement of the judgment, the defense attorney gave oral notice of appeal

and asked for the appointment of the Appellate Defender. The trial court noted the

request on the record and dismissed the jury. When the jury returned, the trial court

accepted the verdict of the jury and ordered that it be recorded as a final judgment.

Subsequently, appellate entries were filed, and the Appellate Defender was appointed

to represent Defendant. Defense counsel filed the record on appeal in this Court on

9 January 2018. Defendant filed a petition for writ of certiorari, pursuant to Rule

21(a) of the North Carolina Rules of Appellate Procedure on 20 February 2018. See

N.C. R. App. P. 21(a) (2018).

      Rule 4 of the North Carolina Rules of Appellate Procedure provides that notice

of appeal from a criminal action may be taken by: “(1) giving oral notice of appeal at

trial, or (2) filing notice of appeal with the clerk of superior court and serving copies

thereof upon all adverse parties within fourteen days after entry of the judgment[.]”

N.C. R. App. P. 4(a) (2018). In the present case, defense counsel prematurely entered

an oral notice of appeal before entry of the final judgment, in violation of Rule 4.

Therefore, “[w]hile this Court cannot hear [D]efendant’s direct appeal, it does have

the discretion to consider the matter by granting a petition for writ of certiorari.”

State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320 (2005). In our discretion,



                                          - 10 -
                                       STATE V. LOPEZ

                                      Opinion of the Court



we allow Defendant’s first petition for writ of certiorari in order to reach the merits

of his appeal.

      At the sentencing hearing, upon finding that Defendant had committed an

aggravated offense, the trial court ordered Defendant to enroll in SBM. Defense

counsel gave oral notice of appeal, but did not file written notice of appeal. Defendant

also filed a second petition for writ of certiorari from the SBM order on 11 May 2018.

      A defendant must file a written notice of appeal from an SBM order pursuant

to Rule 3 of the Rules of Appellate Procedure because of the civil nature of SBM

proceedings.     N.C. R. App. P. 3 (2018); State v. Brooks, 204 N.C. App. 193, 194-95,

693 S.E.2d 204, 206 (2010) (“In light of our decisions interpreting an SBM hearing as

not being a criminal trial or proceeding for purposes of appeal, we must hold that oral

notice pursuant to N.C.R. App. P. 4(a)(1) is insufficient to confer jurisdiction on this

Court. Instead, a defendant must give notice of appeal pursuant to N.C.R. App. P.

3(a) as is proper ‘in a civil action or special proceeding.’”). Rule 3 provides that a

party must enter notice of appeal from a civil action

               (a) by filing notice of appeal with the clerk of superior court
               and serving copies thereof upon all other parties . . .

               ....

               (c) . . . .

                        (1) within thirty days after entry of judgment if the
                        party has been served with a copy of the judgment
                        within the three-day period prescribed by Rule 58 of


                                             - 11 -
                                     STATE V. LOPEZ

                                    Opinion of the Court



                     the Rules of Civil Procedure; or

                     (2) within thirty days after service upon the party of
                     a copy of the judgment if service was not made
                     within that three-day period[.]

N.C. R. App. P. 3(a), (c). In the present case, Defendant did not file a written notice

of appeal in compliance with Rule 3. However, in our discretion, we allow Defendant’s

second petition for writ of certiorari.

                                      III. Analysis

                            A. Insufficiency of the Evidence

       Defendant argues that the trial court erred in denying his motion to dismiss

for insufficiency of the evidence. Specifically, Defendant argues there was insufficient

evidence showing that Miranda was “physically helpless” during sexual intercourse.

We disagree.

       A motion to dismiss for insufficiency of the evidence is reviewed de novo. State

v. English, 241 N.C. App. 98, 104, 772 S.E.2d 740, 744 (2015). “‘Upon [a] defendant’s

motion for dismissal, the question for the Court is whether there is substantial

evidence (1) of each essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant’s being the perpetrator of such offense. If so,

the motion is properly denied.’” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,

455 (2000) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)).




                                           - 12 -
                                      STATE V. LOPEZ

                                     Opinion of the Court



       A person is guilty of second-degree forcible rape if the person engages in

vaginal intercourse with another person:

              (1) By force and against the will of the other person; or

              (2) Who has a mental disability or who is mentally
              incapacitated or physically helpless, and the person
              performing the act knows or should reasonably know the
              other person has a mental disability or is mentally
              incapacitated or physically helpless.

N.C. Gen. Stat. § 14-27.22(a) (2017).2 “Physically helpless” is defined as either “[a]

victim who is unconscious” or “[a] victim who is physically unable to resist an act of

vaginal intercourse or a sexual act or communicate unwillingness to submit to an act

of vaginal intercourse or a sexual act.” N.C. Gen. Stat. § 14-27.20(3) (2017).

       Defendant argues Miranda’s lack of memory is not affirmative evidence that

she was unconscious, physically unable to resist intercourse or a sexual act, or unable

to communicate unwillingness to intercourse or a sexual act. Defendant contends

there was insufficient evidence that Miranda was physically helpless because the only

evidence presented regarding consent was Defendant’s statement to police and his

testimony that Miranda consented to intercourse on two separate occasions, and that

the State presented no evidence that Miranda did not consent.

       The State presented evidence that Miranda consumed sizable portions of

alcohol over an extended period of time, was physically ill in the parking lot of the


       2 Defendant was charged under N.C. Gen. Stat. § 14-27.3(a) (2013). The statute has since
been recodified at N.C.G.S. § 14-27.22. 2015 N.C. Sess. Law ch. 181, § 4(a).

                                            - 13 -
                                    STATE V. LOPEZ

                                   Opinion of the Court



club, and was unable to remember anything after leaving the club. When Miranda

returned to Defendant’s apartment, she stumbled up the stairs and had to hold on to

the stair rail. Miranda woke up the following morning with her skirt pulled up to her

waist, her shirt off, and her underwear on the bed. Miranda’s vagina was sore, and

she had a blurry memory of pushing someone off her. Miranda never had a prior

sexual relationship with Defendant. Moreover, Defendant’s actions following the

incident — his adamant initial denial that anything of a sexual nature occurred and

subsequent contradictory admissions — tend to indicate Defendant knew of his

wrongdoings, i.e., Miranda was physically helpless at the time of the rape. Viewed in

the light most favorable to the State, and drawing all reasonable inferences in favor

of the State, there was sufficient evidence presented that Miranda was physically

unable to resist intercourse or to communicate her unwillingness to submit to

intercourse. Thus, Defendant’s motion to dismiss was properly denied.

                                 B. Expert Testimony

      Defendant argues that, in refusing to allow the testimony of his proposed

expert who would have testified as to an intoxicated person’s ability to engage in

volitional activities and not have any memory after the fact, the trial court abused its

discretion, which amounted to prejudicial error. We disagree.

      “We review a trial court’s admission of expert testimony for abuse of

discretion.” State v. Babich, ___ N.C. App. ___, ___, 797 S.E.2d 359, 361 (2017). “A



                                          - 14 -
                                    STATE V. LOPEZ

                                   Opinion of the Court



trial court may be reversed for abuse of discretion only upon a showing that its ruling

was manifestly unsupported by reason and could not have been the result of a

reasoned decision.” State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986).

      North Carolina Rule of Evidence 702 controls the admissibility of expert

testimony and states:

             (a) If scientific, technical or other specialized knowledge
             will assist the trier of fact to understand the evidence or to
             determine a fact in issue, a witness qualified as an expert
             by knowledge, skill, experience, training, or education, may
             testify thereto in the form of an opinion, or otherwise, if all
             of the following apply:

                    (1) The testimony is based upon sufficient facts or
                    data.

                    (2) The testimony is the product of reliable principles
                    and methods.

                    (3) The witness has applied the principles and
                    methods reliably to the facts of the case.

N.C. Gen. Stat. § 8C-1, Rule 702(a) (2017).

      “Even when an abuse of discretion occurs, a defendant is not entitled to a new

trial unless the error was prejudicial.” State v. Mendoza, ___ N.C. App. ___, ___, 794

S.E.2d 828, 834 (2016). The erroneous exclusion of expert testimony is prejudicial

“when there is a reasonable possibility that, had the error in question not been

committed, a different result would have been reached at the trial out of which the




                                          - 15 -
                                   STATE V. LOPEZ

                                  Opinion of the Court



appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2017). Defendant bears the burden of

demonstrating prejudice. N.C.G.S. § 15A-1443(a).

       At trial, defense counsel attempted to tender Dr. Wilkie Wilson (“Dr. Wilson”),

a neuropharmacologist, as an expert witness. During voir dire, Dr. Wilson testified

that one of his areas of expertise was alcohol and its effect on memory. Dr. Wilson

explained that he would testify “about what’s possible and what’s, in fact, very, very

likely and [sic] when one drinks a lot of alcohol.” Dr. Wilson proffered his opinion

“that someone who is having a blackout might not be physically helpless.” The State

objected to Dr. Wilson’s testimony, arguing that Dr. Wilson’s inability to demonstrate

more than “maybe” possibilities meant his testimony would not be helpful to the jury.

The trial court then sustained the State’s objection, explaining that “this doctor will

not assist the trier of fact to understand the evidence or to determine a fact in issue

in this case[.]”

       The State did not present evidence of Miranda’s lack of memory as affirmative

evidence that she was physically helpless at the time of the sexual encounter. Dr.

Wilson’s testimony was to the effect that an intoxicated person can engage in

volitional activities and not remember.      Because the State’s theory of physical

helplessness did not rest on Miranda’s lack of memory, Dr. Wilson’s testimony would

not have helped the jury “determine a fact in issue in this case.” Indeed, the State

presented evidence that Miranda engaged in volitional activities when she was



                                         - 16 -
                                       STATE V. LOPEZ

                                   Opinion of the Court



intoxicated, such as walking up the stairs to Defendant’s apartment, although

Miranda had no memory of that action. Therefore, the trial court did not abuse its

discretion in excluding Dr. Wilson’s testimony.

      Even assuming, arguendo, that the trial court erred in excluding Dr. Wilson’s

testimony because it was not in the common knowledge of the jurors, this error did

not prejudice Defendant. The State presented evidence of physical helplessness in

the form of testimony regarding Miranda’s consumption of large amounts of alcohol

prior to, and after, arriving at the club; her blurry memory of pushing someone off

her; and Defendant’s deception and lies after the encounter. Therefore, the State

presented overwhelming evidence of Miranda’s physical helplessness, and Defendant

has not met his burden of showing that there was “a reasonable possibility that, had

the error in question not been committed, a different result would have been reached

at the trial[.]” N.C.G.S. § 15A-1443(a).

                                  C. Jury Instruction

      Defendant argues the trial court committed plain error in failing to instruct

the jury that lack of consent was an element of rape of a physically helpless person.

We disagree.

      The trial court instructed the jury in accordance with the pattern jury

instructions for rape of a physically helpless person, N.C.P.I.—Crim. 207.25. The

trial court instructed the jury that



                                           - 17 -
                                    STATE V. LOPEZ

                                   Opinion of the Court



             the State must prove three things beyond a reasonable
             doubt: First, that the defendant engaged in vaginal
             intercourse with the victim. Vaginal intercourse is
             penetration, however slight, of the female sex organ by the
             male sex organ. The actual emission of semen is not
             necessary. Second, that the victim was physically helpless.
             A person is physically helpless if the person is unconscious,
             physically unable to resist an act of vaginal intercourse,
             physically unable to communicate unwillingness to submit
             to an act of vaginal intercourse, or physically unable to
             resist a sexual act. And, third, that the defendant knew or
             should reasonably have known that the victim was
             physically helpless. If you find from the evidence beyond a
             reasonable doubt that on or about the alleged date the
             defendant engaged in vaginal intercourse with the victim
             and at that time the victim was so physically unable to
             resist an act of vaginal intercourse, to communicate
             unwillingness to submit to an act of vaginal intercourse, or
             resist a sexual act as to be physically helpless, and that the
             defendant knew or should reasonably have known that the
             victim was physically helpless, it would be your duty to
             return a verdict of guilty. If you do not so find or have a
             reasonable doubt about one or more of these things, it
             would be your duty to return a verdict of not guilty.

       Defense counsel did not object to the jury instructions at trial or at the charge

conference. It is well established that, when no objection is made to jury instructions,

this Court’s review is limited to the plain error standard.

      “In order to rise to the level of plain error, the error in the trial court’s

instructions must be so fundamental that (i) absent the error, the jury probably would

have reached a different verdict; or (ii) the error would constitute a miscarriage of

justice if not corrected.” State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531

(1997). “It is the rare case in which an improper instruction will justify reversal of a


                                          - 18 -
                                    STATE V. LOPEZ

                                   Opinion of the Court



criminal conviction when no objection has been made in the trial court.” State v.

Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983) (internal quotation marks and

brackets omitted). “In deciding whether a defect in the jury instruction constitutes

‘plain error,’ the appellate court must examine the entire record and determine if the

instructional error had a probable impact on the jury’s finding of guilt.” Id. at 661,

300 S.E.2d at 378-79. “A prerequisite to our engaging in a ‘plain error’ analysis is the

determination that the instruction complained of constitutes ‘error’ at all.” State v.

Johnson, 320 N.C. 746, 750, 360 S.E.2d 676, 679 (1987).

      The Supreme Court of North Carolina held:

             In the case of a sleeping, or similarly incapacitated victim,
             it makes no difference whether the indictment alleges that
             the vaginal intercourse was by force and against the
             victim’s will or whether it alleges merely the vaginal
             intercourse with an incapacitated victim. In such a case
             sexual intercourse with the victim is ipso facto rape
             because the force and lack of consent are implied in law.

State v. Moorman, 320 N.C. 387, 392, 358 S.E.2d 502, 506 (1987); see also State v.

Atkins, 193 N.C. App. 200, 204, 666 S.E.2d 809, 812 (2008) (citing Moorman and

explaining that the second theory of second-degree rape “is applicable when the

victim falls within a special class of victims, who are deemed by law incapable of

resisting or withholding consent; thus, force and the absence of consent need not be

proved by the State, as they are implied in law”).




                                          - 19 -
                                   STATE V. LOPEZ

                                  Opinion of the Court



      Defendant acknowledges that the pattern jury instruction follows the text of

the statute. See Caudill v. Smith, 117 N.C. App. 64, 70, 450 S.E.2d 8, 13 (1994) (“This

Court has recognized that the preferred method of jury instruction is the use of the

approved guidelines of the North Carolina Pattern Jury Instructions.”). However,

Defendant argues the jury should have been instructed that lack of consent is an

element of rape of a physically helpless person. Defendant’s argument is predicated

on our Supreme Court’s holding in State v. Holden, 338 N.C. 394, 450 S.E.2d 878

(1994).

      In Holden, our Supreme Court determined that the submission of a judgment

at a sentencing hearing, entered upon a defendant’s prior conviction of attempted

second-degree rape, was sufficient for the State to prove, as an aggravating

circumstance under N.C.G.S. § 15A–2000(e)(3) (1988), that the defendant had

committed a prior felony involving the use or threat of violence to the person. 338

N.C. at 403-07, 450 S.E.2d at 883-85. The defendant in Holden — unlike Defendant

in the present case — did not argue on appeal that the trial court should have

instructed the jury that lack of consent was an element of second-degree rape.

Instead, the defendant argued the judgment entered upon his prior conviction for

attempted second-degree rape did not establish, on its own, that the prior felony was

accompanied by the use or threat of violence. Id. at 404, 450 S.E.2d at 883. Thus,

under the defendant’s reasoning, because second-degree rape can involve a person



                                         - 20 -
                                    STATE V. LOPEZ

                                   Opinion of the Court



who is mentally defective, mentally incapacitated, or physically helpless, violence or

the threat of violence is not necessarily required. Id. at 404, 450 S.E.2d at 883.

      Our Supreme Court disagreed with the defendant’s contention, and “reject[ed]

the notion of any felony which may properly be deemed ‘non-violent rape.’” Id. at 405,

450 S.E.2d at 884. The Court held that “[t]he acts of having or attempting to have

sexual intercourse with another person who is mentally defective or incapacitated

and statutorily deemed incapable of consenting — just as with a person who refuses

to consent — involve the ‘use or threat of violence to the person[,]’” noting that it did

not “believe that having or attempting to have sexual intercourse with a ‘physically

helpless’ person in violation of N.C.G.S. § 14-27.3(a)(2) may properly be deemed ‘non-

violent’ rape or attempted rape.” Id. at 406, 450 S.E.2d at 884.

      In the present case, the trial court properly instructed the jury on all of the

elements of second-degree rape of a physically helpless person. Since “the force and

lack of consent are implied in law,” Moorman, 320 N.C. at 392, 358 S.E.2d at 506, the

trial court was not required to instruct the jury that lack of consent was an essential

element of second-degree rape. See State v. Compton, 244 N.C. App. 153, 780 S.E.2d

760, No. 15-567, 2015 WL 7288456 (2015) (unpublished) (“The trial court properly

instructed the jury on the elements of second-degree rape of a physically helpless

person because the force and lack of consent are implied in law.” (internal quotation




                                          - 21 -
                                    STATE V. LOPEZ

                                   Opinion of the Court



marks and citation omitted)).        Accordingly, we hold Defendant has failed to

demonstrate error, let alone plain error, in the trial court’s instructions to the jury.

                                 D. Cumulative Error

      Defendant argues that, because the trial court erred by denying Defendant’s

motion to dismiss, excluded Dr. Wilson’s testimony, and failed to instruct the jury on

an element of the crime, the trial court committed cumulative error, warranting a

new trial. “Cumulative errors lead to reversal when taken as a whole they deprived

the defendant of his due process right to a fair trial free from prejudicial error.” State

v. Wilkerson, 363 N.C. 382, 426, 683 S.E.2d 174, 201 (2009) (internal quotation marks

and brackets omitted). Since we hold that Defendant has failed to show prejudicial

error at trial, we necessarily find no cumulative error.

                                        E. SBM

      Defendant argues the trial court erred in ordering lifetime SBM for Defendant

because the State did not meet its burden of proving that it was a reasonable Fourth

Amendment search. We agree.

      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

held in Grady v. North Carolina, 575 U.S. ___, 191 L. Ed. 2d 459 (2015) that SBM is



                                          - 22 -
                                   STATE V. LOPEZ

                                  Opinion of the Court



a “search” under the Fourth Amendment. 575 U.S. at ___, 191 L. Ed. 2d at 461-62.

Therefore, before subjecting a defendant to enrollment in SBM, North Carolina

Courts must first “examine whether the State’s monitoring program is reasonable —

when properly viewed as a search.”        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.’” State v. Greene,

___ N.C. App. ___, ___, 806 S.E.2d 343, 344 (2017) (quoting Grady, 575 U.S. at ___,

191 L. Ed. 2d at 462).

                             1. Preservation of the Issue

      We must first address whether this issue was preserved for appellate review.

At the sentencing hearing, the State asked the trial court to

             have the hearing, to have the [c]ourt find under the totality
             of the circumstances, balancing those interests of both the
             intrusion into his privacy versus a compelling State
             interest, that it is not unreasonable and the search is not
             unreasonable under these circumstances. You’ve heard the
             evidence in the case. I would also submit to you, one, there
             have been many cases that come down and talk about the
             fact that the United States -- you know, the United States
             Supreme Court has recognized the dangers of recidivism in
             cases of sex offenders and that when sex offenders reenter
             society they are much more likely than any other type of
             offender to be arrested for a new rape or sexual assault.
             Especially concerning to the State is the fact that, from
             what everything I could see in this case, . . . I still don’t
             think he gets it. I really don’t. And so that makes me
             concerned that the level of ability to re-offend and


                                         - 23 -
                                      STATE V. LOPEZ

                                     Opinion of the Court



                recidivate is much higher. And so I would ask that you do
                that balancing test and that under the circumstances find
                that it is not an unreasonable search and order lifetime
                satellite based monitoring as well.

      Defendant failed to object. After hearing the State’s argument, the trial court

announced from the bench:

                [T]he Court further finds that -- based on the evidence that
                has been submitted in this case and the [c]ourt taking into
                consideration the totality of the circumstances, the [c]ourt
                at this time finds that it is appropriate and necessary that
                upon release from imprisonment that this defendant shall
                enroll in a satellite based monitoring program for his
                natural life until such time that the monitoring is
                terminated pursuant to the North Carolina General
                Statutes.

The trial court then specifically asked the parties if either wanted to add anything to

the discussion, and both parties declined.

      The State contends that Defendant failed to preserve the issue of whether the

imposition of SBM on Defendant was reasonable under the Fourth Amendment

because he did not object or raise this issue at trial. Defendant argues that, because

SBM was imposed at the sentencing hearing, the issue was automatically preserved

pursuant to State v. Dye, ___ N.C. App. ___, 802 S.E.2d 737 (2017).            We reject

Defendant’s argument because the procedural posture of Dye is inapposite to the

present case.

      In Dye, the defendant was convicted of statutory rape and sentenced to a term

of imprisonment and SBM for a thirty-year period. Id. at ___, 802 S.E.2d at 739. The


                                            - 24 -
                                    STATE V. LOPEZ

                                   Opinion of the Court



defendant was sentenced under a statute that required the trial court to determine

whether the defendant fit into a statutorily designated category. Id. at ___, 802

S.E.2d at 742. The statute mandated that, if the trial court determined the defendant

did not fit into a statutorily designated category, the Division of Adult Correction was

required to conduct a risk assessment. Id. at ___, 802 S.E.2d at 742. The trial court

was then able to consider the risk assessment before making a determination as to

whether the defendant required the highest possible level of supervision and

monitoring. Id. at ___, 802 S.E.2d at 742.

      The trial court determined the defendant did not fit into a statutorily

designated category and, therefore, ordered that the Division of Adult Correction

conduct a risk assessment. Id. at ___, 802 S.E.2d at 743. The risk assessment

conducted on the defendant indicated that he was in the “Moderate-High” risk

category. Id. at ___, 802 S.E.2d at 743. Based on the assessment, the trial court

found that the defendant required the highest level of monitoring and supervision,

and imposed SBM. Id. at ___, 802 S.E.2d at 743. The defendant did not object. Id.

at ___, 802 S.E.2d at 741-42.

      On appeal, the defendant argued the trial court erred by ordering SBM without

making sufficient findings of fact that the defendant required the highest level of

monitoring. Id. at ___, 802 S.E.2d at 741. The defendant contended the matter was




                                          - 25 -
                                         STATE V. LOPEZ

                                       Opinion of the Court



automatically preserved pursuant to N.C. Gen. Stat. § 15A-1446(d)(18) (2017)3

(providing grounds under which errors are preserved without objection, including if

“[t]he 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”). The State argued that the defendant failed to preserve the issue

because he did not object at the SBM hearing. Id. at ___, 802 S.E.2d at 741-42.

       In its decision, this Court cited prior decisions that held that a “‘Moderate-

High’ risk category was insufficient to support a finding that the highest possible

level of supervision and monitoring was required.” Id. at ___, 802 S.E.2d at 743. This

Court held the trial court erred in finding that the defendant required the highest

level of supervision and monitoring based solely on the risk assessment, and vacated

the order imposing SBM on the defendant. Id. at ___, 802 S.E.2d at 743-44.

       In Dye, the SBM order was clearly erroneous, as the trial court’s finding was

in direct conflict with precedent of this Court. In contrast, in the present case,

Defendant argues the trial court erred in imposing SBM because the State did not

prove that Defendant’s enrollment in SBM was a reasonable Fourth Amendment

search. This Court has never found that the issue of reasonableness within the

context of SBM hearings was within the purview of N.C.G.S. § 15A-1446(d)(18).



       3 Although our Supreme Court “has held several subdivisions of subsection 15A-1446(d) to be
unconstitutional encroachments on the rulemaking authority of the Court, subdivision (18) is not one
of them.” State v. Meadows, ___ N.C. ___, ___, 821 S.E.2d 402, ___ (2018) (footnote omitted).

                                               - 26 -
                                   STATE V. LOPEZ

                                  Opinion of the Court



Thus, we reject Defendant’s argument and hold that the matter was not

automatically preserved by statute.

      Having determined the issue was not automatically preserved, we now address

whether the matter was otherwise preserved. “Our appellate courts will only review

constitutional questions raised and passed upon at trial.” State v. Mills, 232 N.C.

App. 460, 466, 754 S.E.2d 674, 678 (2014).

      We acknowledge that this is a tumultuous time in our case law regarding the

parties’ burdens and the role of the trial court in hearings on SBM (“Grady hearings”).

A review of recent case law reveals three broad scenarios in which this Court

addressed preservation issues in the context of Grady hearings. In the first scenario,

a defendant fails to object to the imposition of SBM, the State offers no statements

regarding reasonableness, and the trial court does not pass on the issue. See State v.

Lindsey, ___ N.C. App. ___, 818 S.E.2d 344 (2018) (holding the Grady issue was not

preserved for appellate review when it was not raised at trial by either party and not

ruled upon by the trial court, and declining to invoke Rule 2 because the law

regarding preservation of it in the context of Grady hearings was settled); see also

State v. Bishop, ___ N.C. App. ___, 805 S.E.2d 367 (2017). In the second scenario, a

defendant objects to a trial court’s imposition of SBM, but does not specify that the

objection is grounded in Fourth Amendment or Grady. See State v. Bursell, ___ N.C.

App. ___, 813 S.E.2d 463 (2018) (holding the issue of Grady was preserved at trial



                                         - 27 -
                                    STATE V. LOPEZ

                                   Opinion of the Court



when it was apparent from the context that the defendant’s objection implicated the

defendant’s right to a reasonableness determination). In the third scenario, the State

specifically argues that the imposition of SBM on a defendant is a reasonable Fourth

Amendment search, the defendant does not object to the imposition of SBM, and the

trial court passes on the issue. See State v. Griffin, ___ N.C. App. ___, 818 S.E.2d 336

(2018) (holding the Grady issue was preserved when it was raised at trial and passed

upon by the trial court); see also State v. Hammonds, No. COA17-931, 2018 WL

1386738 (N.C. Ct. App. Mar. 20, 2018) (unpublished).

      In essence, our Courts have distinguished between cases in which (1) the trial

court failed to conduct a reasonableness inquiry, and (2) the State initiated a

reasonableness inquiry, and the trial court passed on the matter. In the former, a

defendant must object to preserve the issue because “[a]lthough the State has the

burden of proof of reasonableness of SBM under the Fourth Amendment as directed

by Grady, the defendant still must raise the constitutional objection so the State will

be on notice it must present evidence to meet its burden.” Lindsey, ___ N.C. App. at

___, 818 S.E.2d at 349 (internal citation omitted); see also State v. Stroessenreuther,

___ N.C. App. ___, ___, 793 S.E.2d 734, 735 (2016) (“Under Grady, the trial court was

required to consider the reasonableness of the satellite-based monitoring when [the

defendant] challenged that monitoring on Fourth Amendment grounds.”). In the

latter, the State initiates the Grady discussion and, thus, has the opportunity to



                                          - 28 -
                                   STATE V. LOPEZ

                                  Opinion of the Court



satisfy its burden of proving a search is reasonable under the Fourth Amendment,

and the trial court has the opportunity to rule on it. Therefore, an objection is not

necessary to preserve the Grady issue for appellate review.

      In the present case, the State initiated the Grady discussion and argued

imposition of SBM on Defendant was a reasonable Fourth Amendment search.

Although Defendant did not object at trial, the reasonableness of SBM of Defendant

was raised and passed upon by the trial court. In State v. Hammonds, an unpublished

opinion with facts similar to the present case, the State initiated a Grady discussion,

and the trial court found SBM of the defendant was a reasonable search. 2018 WL

1386738, at *1. The defendant failed to object. Id. at *2. This Court held that “[t]he

dialogue quoted above reflects that the issue of whether SBM constituted a

reasonable search pursuant to Grady was raised by the State during the hearing and

passed on by the trial court. The State cannot now argue that the issue was waived.”

Id. at *2. Here, as in Hammonds, it is evident the State recognized that a Grady

hearing was necessary, and the trial court understood it needed to conduct a

balancing test. Therefore, although Defendant did not object at trial, we hold the

Grady issue was preserved for appellate review.

                             2. Reasonableness Inquiry

      We now address whether the trial court properly determined that SBM was a

reasonable Fourth Amendment search of Defendant. “The State bears the burden of



                                         - 29 -
                                   STATE V. LOPEZ

                                  Opinion of the Court



proving that enrollment in satellite-based monitoring is a permissible Fourth

Amendment search of each particular defendant targeted.” State v. White, ___ N.C.

App. ___, ___, 820 S.E.2d 116, ___. (2018).

      In the present case, the State initiated the discussion about reasonableness

and the Fourth Amendment. The State asked the trial court to balance the invasion

of privacy against the State’s compelling interest, and to find that the imposition of

SBM on Defendant was not an unreasonable search. The State requested that the

trial court consider the evidence of the case and that: (1) “the United States Supreme

Court has recognized the dangers of recidivism in cases of sex offenders and that

when sex offenders reenter society they are much more likely than any other type of

offender to be arrested for a new rape or sexual assault;” and (2) based on the State’s

observation, Defendant does not “get[] it,” which makes the State “concerned that the

level of ability to re-offend and recidivate is much higher.” The trial court announced

from the bench that, after considering the totality of the circumstances, Defendant’s

enrollment in SBM was “appropriate and necessary.”

      It is apparent from the transcript that the State had both the knowledge of its

burden and the opportunity to put on sufficient evidence to satisfy its burden. Cf. Id.

at ___, 820 S.E.2d at ___ (vacating and remanding an SBM order when “[t]he trial

court did not afford the State an opportunity to present evidence in order to establish

the constitutionality of enrolling [the d]efendant in satellite-based monitoring”). In



                                         - 30 -
                                   STATE V. LOPEZ

                                  Opinion of the Court



the present case, the State failed to carry its burden of proving SBM of Defendant

was a reasonable Fourth Amendment search because it did not put on any evidence

regarding reasonableness. See Greene, ___ N.C. App. at ___, 806 S.E.2d at 345-46

(reversing the trial court’s order because “the nature of the State’s burden was no

longer uncertain at the time of defendant’s satellite-based monitoring hearing.

[Previous cases from this Court] made clear that a case for satellite-based monitoring

is the State’s to make”). Therefore, because “the State will have only one opportunity

to prove that SBM is a reasonable search of the defendant[,]” and, in the present case,

the State was previously afforded such an opportunity and failed to prove that SBM

is a reasonable search of Defendant, we reverse the trial court’s SBM order. State v.

Grady, ___ N.C. App. ___, ___, 817 S.E.2d 18, 28 (2018)

                         E. Ineffective Assistance of Counsel

      Defendant argues that, in the event this Court does not reach the merits of the

SBM issue, Defendant received ineffective assistance of counsel. However, because

we have reached the merits of the above issue, we need not address this alternative

argument.

                                   IV. Conclusion

      For the reasons stated above, this Court holds that the trial court did not err

in denying Defendant’s motion to dismiss and in instructing the jury in accord with

the pattern jury instructions for second-degree rape. We also hold that the trial court



                                         - 31 -
                                  STATE V. LOPEZ

                                 Opinion of the Court



did not commit prejudicial error in excluding the testimony of Dr. Wilson. Finally,

we hold that the trial court erred in imposing SBM on Defendant, and we reverse the

SBM order.

      NO ERROR IN PART; NO PREJUDICIAL ERROR IN PART; REVERSED IN

PART.

      Judges HUNTER, JR. and HAMPSON concur.




                                        - 32 -
