In this Caldwell County case, the defendant was charged with first-degree sex offense with a child. The victim was the minor child of a family friend. While the child was watching television at the defendant’s house, the defendant brought the child to his computer, which had pornography playing. The defendant then exposed himself and masturbated, performed oral sex on the child, and attempted to have anal sex with the child. The child escaped and reported the incident to his mother at once. During forensic examination, the defendant’s DNA was found on the child’s underwear. The child stated that the defendant had shown him a glass duck with square packets inside he did not recognize, similar to candy or gum packaging, in a previous encounter. At trial, the State presented photos of the defendant’s bedroom. One photo showed sex toys and condoms, and the other photos showed a bag of condoms with a sex toy in the background. The sex toys were not alleged to have been involved in the sexual assault, and the State did not mention them in argument. It did argue that the items in the glass duck mentioned by the victim during his interview were condoms, and that the photos of the condoms in the defendant’s room corroborated the child’s account. The defendant was convicted at trial and appealed.

(1) The admission of the photograph showing condoms in the defendant’s room was properly admitted. That image was relevant to corroborate the victim’s story and to show potential grooming behavior by the defendant. The condoms were also admissible to show the defendant’s plan and preparation to commit the offense. Thus, the trial court did not err under N.C. Evid. R. 401 or 404 in admitting the condom photo. The admission of the photos showing the sex toy, however, was erroneous under both rules. The sex toy was in no way related to the assault allegation and amounted to improper character evidence. However, the sex toy was only referenced at trial in passing by defense counsel (and not elsewhere), and there was overwhelming evidence of the defendant’s guilt. Under these circumstances, the erroneous admission of the photos did not rise the level of plain error.

(2) The defendant was ordered to enroll in satellite-based monitoring (“SBM”) for life without a hearing and without defense objection. On appeal, the parties conceded that this was error but disagreed as to the remedy, with the defendant asking for reversal and the State seeking remand of the issue. The court found the issue was preserved under G.S. 15A-1446(d)(18) as an unauthorized sentence. The defendant was convicted under now-G.S. 14-27.29 (formerly G.S. 14-27.4). At trial, the parties mistakenly agreed that the defendant had been convicted under G.S. 14-27.28 (formerly G.S. 14-27.4A). Under the SBM laws in place at the time, a person convicted of an offense under G.S. 14-27.28 was required to enroll in SBM for life, whereas the defendant’s conviction was not eligible for automatic lifetime enrollment. His conviction did require that he undergo a risk assessment and potentially enroll in SBM for a time period to be determined by the trial court. While other cases have prohibited the State from re-litigating the issue on remand, this case was distinguishable given the lack of a motion to dismiss the SBM proceeding, the lack of defense objection, and the mistake of law of the parties. The SBM order was therefore vacated without prejudice, allowing the State to seek an additional hearing on the issue if it desires. A claim of ineffective assistance of counsel based on trial counsel’s performance at the SBM hearing was rendered moot in light of this holding.

(3) The defendant sought to access an officer’s personnel file, as well as Division of Social Services (“DSS”) and school records on the victim and his family. The trial court reviewed and released to the defendant certain documents from each category but ordered other portions of the records withheld as irrelevant, cumulative, or otherwise not discoverable. The Court of Appeals reviewed the unreleased records and determined that some of the unreleased records contained evidence favorable to the defendant. However, that information was not material, in that it did not establish a reasonable likelihood of a different result at trial had it been disclosed. Further discussion of the specifics of the undisclosed records was placed in an order under seal in the court file to preserve the confidentiality of the records for any potential further review. The case was therefore remanded for any new SBM proceeding, and the trial was otherwise without error.