Criminal Practice – Rape – Eyewitness Testimony & Physical Evidence – SBM – No Hearing

The state presented the following evidence: (1) the victim was heard screaming; (2) strangers Jean and John ran toward the sound of the screams and “saw a man straddling” the victim; (3) John threw the man off the victim and saw him pulling his pants up and that he had an erection; (4) the victim’s underwear and her pants were all the way to her ankles; (5) someone yelled, “Call the police, he raped her,” at which point the man took off; (6) inside the victim’s vagina a nurse found debris and a small black hair consistent with a pubic hair (which the victim did not have); and (7) witnesses identified defendant as the man in question. Considered in the light most favorable to the state, a reasonable juror could have inferred from this evidence that the victim was vaginally penetrated against her will and that defendant was the perpetrator of that assault; therefore, the trial court correctly denied defendant’s motion to dismiss.

We find no error in defendant’s conviction of first-degree rape. We vacate the order requiring defendant to submit to satellite-based monitoring (SBM) upon his release for prison, and we remand for further proceedings.

Because no evidentiary hearing was held on the matter of SBM, we are unable to review the propriety of enrolling defendant in lifetime SBM. Accordingly, we must remand the matter to the trial court in order to conduct a hearing, at which time the state will be required to establish the constitutionality of subjecting defendant to continuous location monitoring for the remainder of his natural life upon defendant’s eventual release from prison.

State v. White (Lawyers Weekly No. 011-291-18, 15 pp.) (Valerie Zachary, J.) Appealed from New Hanover County Superior Court (Imelda Pate, J.) Tamara Zmuda for the state; Mark Montgomery for defendant. N.C. App.