State v. Mack, ___ N.C. App. ___, 2021-NCCOA-215 (May. 18, 2021)

In this Cumberland County case, the defendant was convicted by a jury of second-degree rape and second-degree sexual offense against a victim named Tamara. The offenses were committed in 2011, but not successfully investigated until a DNA database match in 2017. During the trial, the trial judge allowed testimony by another woman, Kesha, who alleged that the defendant had previously raped her in 2009, for the purpose of proving the identity of the assailant in Tamara’s case. (1) The defendant argued on appeal that the trial court erred in admitting the prior act testimony from Kesha under N.C. R. Evid. 404(b). Reviewing for plain error, the Court of Appeals concluded that the overwhelming evidence of the defendant’s identity and guilt made it improbable that the jury would have reached a different result even if the evidence had been admitted in error—as it may have been given that the defendant’s identity was not necessarily in issue in the case (he did not claim an alibi), and the circumstances of the two rapes were not particularly similar. 

(2) The defendant also argued that the trial court erred by finding that his convictions under G.S. 14-27.3 and G.S. 14-27.5, the former statutes for second-degree rape and second-degree sexual offense, required sex offender registration, because those former statutes are not specifically listed in the current list of reportable offenses. Notwithstanding the State’s lack of a compelling argument on appeal, the Court of Appeals on its own found the effective date provision in the 2015 recodification act, which said that prosecutions for offenses committed before December 1, 2015 remain subject to the laws that would otherwise be applicable to those offenses, including the list of reportable convictions in the former version of G.S. 14-208.6(5). The trial court therefore did not err in ordering the defendant to register. 

(3) Finally, the defendant argued that the trial court erred by ordering him to enroll in satellite-based monitoring for life without conducting a full determination hearing. The Court of Appeals agreed. The State specifically elected not to proceed with the hearing during the sentencing phase, and the trial court thus erred by ordering SBM. The Court of Appeals vacated the SBM orders and remanded the issue for hearing.