              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-391

                                 Filed: 5 April 2016

Guilford County, No. 11 CRS 066292

STATE OF NORTH CAROLINA

             v.

MOSES N. KPAEYEH


      Appeal by Defendant from judgments entered 6 November 2014 by Judge R.

Stuart Albright in Superior Court, Guilford County. Heard in the Court of Appeals

7 October 2015.


      Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth
      Guzman, for the State.

      W. Michael Spivey for Defendant.


      STROUD, Judge.


      Moses N. Kpaeyeh (“Defendant”) immigrated from Ivory Coast to Texas in

early 2004 with his wife, their children, and a female child (“Mary”), the daughter of

his wife’s sister. Mary had fled from civil unrest in her home country of Liberia.

According to the State’s evidence, Defendant began sexually assaulting Mary that

same year, when Mary was fourteen years old. The sexual assaults included vaginal

intercourse. Defendant, his family, and Mary moved from Texas to Greensboro in

2005, when Mary was fifteen. The sexual assaults continued, and Mary became

pregnant when she was fifteen years old.
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                                       Opinion of the Court



        According to Mary’s testimony at trial, she first hid the fact that Defendant

was the father of her child (“the child”) because Defendant had threatened to hurt

her and her family in Liberia if she ever reported the sexual assaults. The child was

born in early 2006, and Mary’s parental rights to the child were terminated in May

2008.       Following the termination proceeding, Mary told a social worker that

Defendant was the father of the child. DNA paternity testing, conducted in 2010,

confirmed that Defendant was the father of the child, and the Greensboro Police

Department was informed of the results of the DNA testing in December 2010.

Defendant was arrested on 5 April 2011 and indicted on 16 May 2011 for one count

each of statutory rape, N.C. Gen. Stat. § 14-27.7A(a),1 and taking indecent liberties

with a child, N.C. Gen. Stat. § 14-202.1(a)(1).

        Defendant’s trial commenced on 3 November 2014. Between his arrest and his

trial, Defendant was represented by three different attorneys. The first, a court-

appointed private attorney, represented Defendant until that attorney left private

practice in April 2013. Defendant’s second attorney was a public defender, and

represented Defendant until August 2014, when Alvin Hudson II (“Hudson”) was

hired by Defendant and took over representation of Defendant. Beginning in July

2011, and continuing periodically until at least mid-September 2013, Defendant sent

self-authored letters directly to the Guilford County Clerk of Superior Court


        1  This section was recodified as N.C. Gen. Stat. § 14-27.25 by 2015 Sess. Laws 181, § 7(a),
effective 1 December 2015.

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requesting a “speedy trial,” but Hudson was the first of Defendant’s attorneys to move

for a speedy trial. Hudson filed a motion on 30 October 2014 in which he argued that

Defendant’s right to a speedy trial had been violated and that the charges against

Defendant should therefore be dismissed. Specifically, the motion stated that “as a

result of the extensive delay in the arrest and prosecution of the . . . case, [D]efendant

has been prejudiced by an inability to adequately assist his defense attorney in

preparation for his trial. Nor has he been able to locate any possible witnesses for

the defense.”

      Defendant’s motion to dismiss was denied by order entered 6 November 2014,

nunc pro tunc 3 November 2014. Defendant was brought to trial on 3 November 2014,

and was found guilty on 5 November 2014 of one count each of statutory rape and

taking indecent liberties with a child. Defendant was sentenced to an active term of

288 to 355 months for the statutory rape conviction, to follow an active sentence of 19

to 23 months for the conviction of taking indecent liberties with a child. The trial

court also found, based solely upon the statutory rape conviction, that Defendant

“must enroll in satellite-based monitoring for the rest of his natural life.” Defendant

appeals.

      Defendant makes three arguments on appeal, which we will address in the

following order: (1) the trial court erred in denying Defendant’s motion to dismiss

based upon the alleged violation of Defendant’s right to a speedy trial, (2) the trial



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court erred in denying Defendant’s motion to dismiss the charge of indecent liberties

at the close of the evidence, and (3) the trial court erred in requiring Defendant to

submit to lifetime satellite-based monitoring. Because Defendant failed to preserve

the issue of satellite-based monitoring by filing a timely written notice of appeal,

Defendant has petitioned this Court for writ of certiorari, requesting that we address

this issue.   We grant Defendant’s petition, and address below his argument

pertaining to satellite-based monitoring.

      I.      Speedy Trial

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

charges against him because his right to a speedy trial had been violated, and he was

prejudiced by the delay. We disagree.

      Our Supreme Court has stated:

              [T]he United States Supreme Court identified four factors
              “which courts should assess in determining whether a
              particular defendant has been deprived of his right” to a
              speedy trial under the federal Constitution. These factors
              are: (i) the length of delay, (ii) the reason for the delay, (iii)
              the defendant’s assertion of his right to a speedy trial, and
              (iv) whether the defendant has suffered prejudice as a
              result of the delay. We follow the same analysis when
              reviewing such claims under Article I, Section 18 of the
              North Carolina Constitution.

State v. Grooms, 353 N.C. 50, 62, 540 S.E.2d 713, 721 (2000) (citations omitted). As

to the first factor, we hold that the more than three-year delay between Defendant’s




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                                   Opinion of the Court



indictment and trial is sufficiently long to trigger analysis of the remaining factors.

Id.

      Concerning the second factor, the reason for the delay, a “defendant has the

burden of showing that the delay was caused by the neglect or willfulness of the

prosecution.” Id. In its order denying Defendant’s motion to dismiss, the trial court

included the following findings relevant to the reasons for the delay: The State

reasonably believed, based upon interactions with Defendant’s first two attorneys

and the DNA evidence proving that Defendant was the father of Mary’s child, that

negotiations would eventually end in a plea; Defendant’s first two attorneys did not

“indicate [they were] in a hurry to try this case to a jury or otherwise express concern

. . . about the age of the case[;]” the State learned in December 2013 that Hudson was

likely to take over Defendant’s case and Hudson made a general appearance in the

case on 1 August 2014; “[f]rom December of 2013 to 1 August 2014, Defendant’s

attorney representation was in question[;]” and finally, Hudson informed Defendant’s

second attorney in January 2014 that Hudson would be taking over Defendant’s case

and, therefore, Defendant’s second attorney “was unable to accept or reject any plea

offer or otherwise set the case for trial.” In addition, Defendant “formally rejected a

plea offer from the State” on 25 August 2014, and was given a new court date of 3

November 2014. Defendant’s trial did begin on 3 November 2014.




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      We hold that these findings were supported by competent evidence, and that

they support the trial court’s conclusion that the delay “was not caused by the neglect

or willfulness of the prosecution, nor was the delay the result of willful misconduct

by the prosecution.” The evidence tends to show that the changes in defendant’s

representation caused much of the delay.             Either miscommunication between

Defendant and his first two attorneys, or neglect on the part of those attorneys, also

seems to have contributed to the delay. Defendant was personally contacting the

Guilford County Clerk of Superior Court and requesting that the matter be put on for

trial. But Defendant was represented by counsel, and it was Defendant’s counsel who

should have been asserting Defendant’s right to a speedy trial, if Defendant requested

this. Grooms, 353 N.C. at 61, 540 S.E.2d at 721 (citations omitted) (“Having elected

for representation by appointed defense counsel, defendant cannot also file motions

on his own behalf or attempt to represent himself. Defendant has no right to appear

both by himself and by counsel.”).

      Concerning the third factor, Defendant was asserting his right to a speedy trial

through his multiple letters to the Guilford County Clerk of Superior Court. As noted

above, Defendant should have made his requests through his counsel, and not

directly. Yet Defendant’s failure of process does not equate to an absence of an intent

to assert his constitutional right to a speedy trial.




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      Finally, concerning the fourth factor, Defendant must show that he “suffered

significant prejudice as a result of the delay.” Id. at 63, 540 S.E.2d at 722. Defendant

argued in his motion to dismiss that he was prejudiced by “an inability to adequately

assist his defense attorney in preparation for his trial” and an inability “to locate any

possible witnesses for the defense.” Defendant does not make this same argument on

appeal, and we fail to see how additional time to prepare for trial limited Defendant’s

ability to assist in his defense. Further, there is no record evidence of any witness

Defendant could have called for trial whose testimony was lost due to the delay. The

argument that a delay in bringing Defendant’s case to trial could have somehow

hindered Defendant’s ability to “locate” witnesses is not a strong one, as witnesses

are generally, and preferably, located before trial. Indeed, Defendant had a longer

time to “locate” witnesses because of the delay, and Defendant does not argue that

any potential witnesses became unavailable due to the delay.

      At the hearing on his motion to dismiss, Defendant argued that the delay

hindered his ability to locate potential alibi witnesses. DNA testing confirmed that

Defendant was the father of the child and Defendant has not challenged the

reliability of the DNA evidence presented at trial. The word “alibi” is derived from

Latin and literally means “elsewhere, somewhere else.” An alibi witness normally

provides evidence that a defendant was “somewhere else” when the alleged crime




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occurred. Considering the DNA evidence of paternity, Defendant does not explain

how an alibi witness might be of assistance in this case.

      During the hearing, Defendant’s counsel also argued the following:

             [I]t has been an oppressive pretrial incarceration. His
             anxiety, for lack of a better word, is certainly through the
             roof. Any time I’ve spoken with [Defendant], he has always
             been anxious: When am I going to be able to go to court,
             when can I be heard on this matter. He’s been unable to,
             you know, to be with his family, being held under a
             certainly high bond which he cannot afford to make.

      On appeal, Defendant’s only arguments related to prejudice are that

Defendant had “expressed his concern about his health and the impact of jail

conditions upon him after his first 100 days of incarceration[,]” and that he continued

to express concerns about his health. Defendant was “also concerned about his

inability to contact his lawyer or his relatives[,]” and he argued that “[t]hree and one-

half years of sitting in a jail cell making repeatedly ignored requests to at least be

brought into a courtroom [was] prejudicial.” But Defendant did not make any

arguments concerning his health in his motion to dismiss or at the hearing on that

motion. Nor did Defendant argue that he was unable to communicate with his

attorneys as a result of the time it took to bring this matter to trial. The only

arguments Defendant made to the trial court, that he now makes on appeal, are that

the delay in bringing the matter to trial interfered with his ability to be with his

family and caused him anxiety. It is obvious that Defendant’s pre-trial incarceration



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                                   Opinion of the Court



limited his freedom to interact with his family, and we do not doubt that it also caused

Defendant more generalized anxiety. But these things happen to all defendants who

are incarcerated prior to trial, and Defendant fails to prove prejudice beyond that

normally associated with incarceration.

      We hold that although the nearly three and one-half year delay between

Defendant’s indictment and his trial on these matters was long, and that Defendant’s

prolonged pre-trial incarceration necessarily caused him hardship, the delay was not

caused by the prosecution’s neglect or willful misconduct, so Defendant has failed to

show that this delay rises to the level of a violation of his constitutional rights, as

required by Grooms. Grooms, 353 N.C. at 62, 540 S.E.2d at 721. This argument is

without merit.

      II.      Motion to Dismiss Indecent Liberties Charge

      In Defendant’s next argument, he contends the trial court erred in failing to

dismiss the charge of taking indecent liberties with a child at the close of all the

evidence because the State failed to introduce substantial evidence of that charge.

We disagree.

               When a defendant moves for dismissal, the trial court is to
               determine whether there is substantial evidence (a) of each
               essential element of the offense charged, or of a lesser
               offense included therein, and (b) of defendant’s being the
               perpetrator of the offense. If so, the motion to dismiss is
               properly denied.

State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982) (citation


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                                   Opinion of the Court



omitted).

      To survive a motion to dismiss, the State was required to present substantial

evidence that Defendant “[w]illfully [took] or attempt[ed] to take any immoral,

improper, or indecent liberties with [Mary, who was] under the age of 16 years[,] for

the purpose of arousing or gratifying sexual desire[.]” N.C. Gen. Stat. § 14-202.1(a)(1)

(2013). Defendant specifically contends that the State failed to present sufficient

“proof of a purpose to arouse or gratify sexual desire.” Mary testified that Defendant

repeatedly raped her while she was a child living in Defendant’s house and under

Defendant’s protection. Defendant argues that evidence of “vaginal penetration” of a

victim is, by itself, insufficient to prove a rape was “for the purpose of arousing or

gratifying sexual desire[.]” Id. In support of this argument, Defendant cites the

following footnote in State v. Weaver: “We also note, however, that recent scientific

literature suggests that most rapists do not act ‘for the purpose of arousing or

gratifying sexual desire,’ (as the indecent liberties statute requires) but to satisfy a

powerful aggressive need.” State v. Weaver, 306 N.C. 629, 636 n.2, 295 S.E.2d 375,

379 n.2 (1982), disapproved of on other grounds by State v. Collins, 334 N.C. 54, 431

S.E.2d 188 (1993). This footnote was used in Weaver as additional explanatory

information to the following sentence in the main body of that opinion: “We note that

sexual purpose may be inherent in an act of rape.” Weaver, 306 N.C. at 636, 295

S.E.2d at 379.



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      We first note that the motivation behind any particular rape may be difficult

to determine with certainty and can be normally only be inferred from circumstantial

evidence. For example, the motivation behind the repeated statutory rape of a child

living under the perpetrator’s roof is likely different than the motivation for a violent

assault and rape of an adult stranger. It is the province and duty of the trier of fact

to make necessary determinations concerning motivation from the evidence before it.

In any event, the above footnote in Weaver does not stand for the proposition that the

State must always prove something more than vaginal penetration in order to satisfy

the “purpose of arousing or gratifying sexual desire” element of taking indecent

liberties with a child. This footnote, which is dicta, simply illustrates the fact that

sexual desire cannot be assumed to be the motivation behind all sexual assaults.

      In the case before us, the evidence presented a jury question. A jury would not

be required to find that Defendant acted “for the purpose of arousing or gratifying

sexual desire” based upon the evidence presented by the State. But the trial court

was correct in allowing the jury to make the determination of whether the evidence

of Defendant’s repeated sexual assaults of Mary were “for the purpose of arousing or

gratifying sexual desire[.]” The trial court did not err in denying Defendant’s motion

to dismiss the charge of taking indecent liberties with a child.

      III.    Satellite-Based Monitoring

      In Defendant’s final argument, which we address in response to his petition



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for writ of certiorari, he contends that “the trial court erred by finding that a violation

of N.C. Gen. Stat. § 14-27.7A was a reportable conviction under N.C. Gen. Stat. § 14-

208.6(4) where the offense occurred prior to December 1, 2006[.]” We agree.

        In order for Defendant to have been sentenced to any level of satellite-based

monitoring, he had to have been “convicted of a reportable conviction as defined by

G.S. 14-208.6(4)[.]” N.C. Gen. Stat. § 14-208.40A(a) (2013). For the purposes of the

present case, N.C. Gen. Stat. § 14-208.6(4) defines “reportable conviction” as “[a] final

conviction for an offense against a minor, [or] a sexually violent offense[.]” N.C. Gen.

Stat. § 14-208.6(4)(a) (2013). Defendant was not convicted of “an offense against a

minor” as that term is specifically defined by the applicable statutes.2 The trial court

indicated in its order imposing lifetime satellite-based monitoring for the statutory

rape conviction that statutory rape was “a sexually violent offense under G.S. 14-

208.6(5)[.]” Though statutory rape pursuant to N.C. Gen. Stat. § 14-27.7A would

constitute a sexually violent offense for acts committed on or after 1 December 2006,

violation of N.C. Gen. Stat. § 14-27.7A did not constitute a sexually violent offense for

acts committed prior to 1 December 2006. N.C. Gen. Stat. § 14-208.6(5) (2005); 2006

Sess. Laws 247, § 1(b). It is undisputed that the acts for which Defendant was



        2 “‘Offense against a minor’ means any of the following offenses if the offense is committed
against a minor, and the person committing the offense is not the minor’s parent: G.S. 14-39
(kidnapping), G.S. 14-41 (abduction of children), and G.S. 14-43.3 (felonious restraint). The term also
includes the following if the person convicted of the following is not the minor’s parent: a solicitation
or conspiracy to commit any of these offenses; aiding and abetting any of these offenses.” N.C. Gen.
Stat. § 14-208.6(1m) (2013).

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                                   Opinion of the Court



convicted occurred in 2005. Defendant’s 2005 violation of N.C. Gen. Stat. § 14-27.7A

cannot constitute a “sexually violent offense” for the purposes of N.C. Gen. Stat. § 14-

208.6(5) and, therefore, cannot constitute a “reportable conviction” for the purposes

of N.C. Gen. Stat. §§ 14-208.6(4) and 14-208.40A(a).

      Because Defendant’s conviction for statutory rape, based upon acts committed

in 2005, cannot be considered a “reportable conviction” for the purposes of N.C. Gen.

Stat. § 14-208.40A(a), Defendant was not eligible for satellite-based monitoring for

this offense. We therefore vacate the 6 November 2014 Judicial Findings and Order

for Sex Offenders (entered 10 November 2014) that was entered based upon

Defendant’s conviction for statutory rape pursuant to N.C. Gen. Stat. § 14-27.7A(a).

See State v. Oliver, 210 N.C. App. 609, 621, 709 S.E.2d 503, 511 (2011).

      NO ERROR IN PART, VACATED IN PART.

      Judges STEPHENS and DAVIS concur.




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