TYSON, Judge.
Michael Anthony Sheridan (Defendant) appeals from judgments entered upon a jurys verdicts and convictions of four counts of first-degree sexual exploitation of a minor, two counts of statutory rape, and one count of sexual offense in a parental role. We find no error in part and remand for appropriate findings on Defendants pro se speedy trial motion and the trial courts satellite-based monitoring (SBM) determination.
I. Background
T.S. (Tonya) met Defendant in March 2013, in the Raleigh neighborhood where they both lived. Tonya was fourteen years old and Defendant was forty-four. Defendant told Tonya about and introduced her to his daughter, who was around the same age. Tonya began hanging out with Defendants daughter, and Defendant was always around.
On 14 March 2013, Defendant asked Tonya if she wanted to hang out at his house the next day, while she waited for his daughter to get home. The next day, Defendant told Tonya his daughter was home, and she should come over.
Once she entered his house, Defendant told Tonya they were alone. Defendant took Tonya into his bedroom, began kissing her, removed their clothes, and engaged in her first vaginal intercourse. Defendant and Tonya engaged in vaginal intercourse and fellatio every day thereafter, and within a week or two Tonya came to believe she was in love with Defendant.
Tonya moved with her family to Hertford County in November 2013. Defendant continued engaging in sexual relations with Tonya after the move, when she returned to Raleigh with her mother to visit in the area. In June 2014, Tonya moved back to Raleigh and lived with Defendant. Defendant had told Tonya she could choose where she wanted to live after she turned sixteen years old. Tonya told her mother Defendant had offered her a job in Raleigh, and she was going to live with and work for him.
Defendant and Tonya shared a bed when she moved in with him and immediately resumed their sexual relationship. Their near daily sexual activity occurred before and after Tonyas sixteenth birthday. Between 2013 and 2014, Tonya used Defendants phone at his request to take four or five nude photographs of herself. Defendant purchased food and clothing for Tonya and gave her a bank card to use for expenses.
On 27 October 2014, Defendant and Tonya argued. At Tonyas request, her grandmother dropped her off at her mothers boyfriends house in Harnett County. Tonyas mothers boyfriend refused to allow Tonya to stay, and she returned to Defendants house in a taxicab late that night.
When she arrived, Tonya found Defendant naked in bed with another woman. Tonya requested Defendant to pay for her cab fare, but he refused. An argument ensued and the police were called. The cab driver retained all of Tonyas luggage and belongings for the unpaid fare. Tonya was arrested and taken to jail for failing to pay the cab fare.
Tonya was released from jail at approximately 3:00 a.m. on 28 October 2014 and walked back to Defendants home from the jail. The other woman was still at the house. Defendant and Tonya argued, and the other woman was driven home by Defendants housemate. Tonya and Defendant slept in the same bedroom, but upon waking continued to argue, mainly about access to a phone. Defendant had provided Tonya with a phone when she had moved in, but he had taken it away from her.
Tonya attempted to retrieve the phone while Defendant was in the shower, but Defendant allegedly began to physically assault her. Tonya grabbed a beer bottle and struck him on the head. Defendant escalated the assault, and when Tonya fell to the floor, she saw a knife and grabbed it. Defendant and Tonya grappled with the knife, but she regained control of it and stabbed Defendant. The assaults continued, and Defendants mother called 911.
Officers arrived and Tonya was transported to the hospital and underwent a sexual assault examination. Tonya told police officers that Defendant had raped her that day and had been sexually active with her prior to that occurrence. Tonya was placed into foster care. Soon after, Tonya learned she was pregnant again and gave birth to a son. She had previously aborted an earlier pregnancy. Subsequent DNA testing confirmed to a confidence interval of 99% that Defendant was the father of the child.
Defendant was indicted for four counts of first-degree sexual exploitation of a minor, two counts of statutory rape, one count of sexual offense in a parental role, one count of indecent liberties with a minor, and of attaining habitual felon status. Defendant had retained counsel, but filed a pro se motion for a speedy trial on 14 April 2015, while being incarcerated in the Wake County Jail for approximately six months. Even though Defendant was represented by counsel, the trial court heard and denied the pro se motion.
Defendants case was called for trial on 20 March 2017. The jurys verdict found Defendant guilty of the four counts of sexual exploitation, two counts of statutory rape, and one count of sexual offense in a parental role. The State dismissed the charges of indecent liberties and Defendant having attained habitual felon status. Defendant was sentenced to two consecutive sentences of 317-441 months, one consecutive sentence of 33-100 months, and four consecutive sentences of 96-176 months. He was also ordered to register as a sex offender and enroll in SBM for the remainder of his natural life.
Defendant gave oral notice of appeal in open court, but did not enter written notice of appeal of the civil SBM order. Defendant has subsequently filed a petition for writ of certiorari to seek review of the civil SBM.
II. Jurisdiction
An appeal of right of Defendants criminal convictions lies with this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444 (2017).
III. Issues
Defendant argues the trial court erred by (1) denying his motion to dismiss the charge of sexual offense in a parental role; (2) denying his motion for speedy trial; and, (3) denying his motion for mistrial. Defendant also asserts his counsel failed to provide effective assistance.
IV. Motion to Dismiss
Defendant asserts the trial court erred in denying his motion to dismiss the charge of sexual offense in a parental role. He argues the State presented insufficient evidence a parent-child relationship existed between Defendant and Tonya. We disagree.
A. Standard of Review
Upon a defendants motion to dismiss for insufficient evidence, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged ... and (2) of defendants being the perpetrator of such offense. If so, the motion is properly denied. State v. Sweat , 366 N.C. 79, 84, 727 S.E.2d 691, 695 (2012) (alteration original) (citation and internal quotation marks omitted). The evidence is to be considered and reviewed in the light most favorable to the State, including all reasonable inferences therefrom. State v. Powell , 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
The evidence need only give rise to a reasonable inference of guilt in order for it to be properly submitted to the jury for a determination of defendants guilt beyond a reasonable doubt. State v. Stone , 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). A motion to dismiss should only be granted when the evidence presented raises no more than a suspicion of guilt. Id.
Whether the State presented sufficient evidence is a question of law, which this Court reviews de novo . State v. Cox , 367 N.C. 147, 150-51, 749 S.E.2d 271, 274-75 (2013) (citation omitted).
B. Analysis
Defendant was charged with violating N.C. Gen. Stat. § 14-27.7(a), which prohibits a person who has assumed the position of a parent in the home of a minor victim [from] engag[ing] in vaginal intercourse or a sexual act with a victim who is a minor residing in the home. N.C. Gen. Stat. § 14-27.7(a) (2015). This statute was recodified as § 14-27.31, but the relevant language is virtually identical. 2015 N.C. Sess. Laws 181, § 13(a).
To survive a motion to dismiss, the State must have presented evidence that Defendant had (1) assumed the position of a parent in the home, (2) of a minor victim, and (3) engaged in a sexual act with the victim residing in the home. State v. Oakley , 167 N.C. App. 318, 322, 605 S.E.2d 215, 218 (2004) (citation omitted). Defendant asserts the factor at issue in this case is whether or not Defendant assumed a parental role in his relationship with Tonya.
This Court has identified a parental role to include evidence of emotional trust, disciplinary authority, and supervisory responsibility. State v. Bailey , 163 N.C. App. 84, 93, 592 S.E.2d 738, 744 (2004). The most significant of these factors is whether the defendant and the minor had a relationship based on trust that was analogous to that of a parent and child. Id. at 94, 592 S.E.2d at 745. It is not necessary for the defendant to have maintained a romantic relationship with the childs parent or to exercise any legal rights over the child in order to be prosecuted under the statute. Id.
Defendant argues Tonya was over sixteen years old and she engaged in a consensual relationship with him. However, the statute clearly indicates consent is not a defense. N.C. Gen. Stat. § 14-27.31(c) (2017). Further, this Court has found a parental role existed between a sixteen-year-old victim and a twenty-three-year-old defendant. Oakley , 167 N.C. App. at 319, 605 S.E.2d at 216. The sexual relationship began when the victim was sixteen, and he began residing with the defendant when he was seventeen. Id. at 319, 605 S.E.2d at 216-17.
Both prior to and during the time the victim was living with him, the defendant had paid for all of [the victims] support ... including food, shelter, gifts and spending money. Id. at 323, 605 S.E.2d at 219. The defendant, Oakley, held himself out to be the victims temporary custodian to the victims parole officer. Id. Evidence at trial indicated the defendant was a friend of the family. Id. at 323, 605 S.E.2d at 218.
Similar to the defendant in Oakley , Defendant paid for Tonyas care and support at a time she was legally unable to work and maintain herself. He also made numerous representations to others of his parental and supervisory role over Tonya: he indicated to police he was her godfather, represented to a friend he was trying to help Tonya out and get her enrolled in school, and told his other girlfriends Tonya was his daughter. While there was no indication Defendant was a friend of Tonyas family, there is evidence he initiated a relationship of trust by approaching Tonya with references to his daughter, who was the same age, and being always present when the two girls were hanging out at his house.
Viewed in the light most favorable to the State, sufficient evidence of Defendants exercise of a parental role over Tonya was presented to survive Defendants motion to dismiss. See Powell , 299 N.C. at 99, 261 S.E.2d at 117. We find no error in the trial courts denial of Defendants motion to dismiss this charge.
V. Motion for Speedy Trial
Defendant argues the trial court erred in denying his motion for speedy trial without addressing any of the Barker v. Wingo factors. We remand for appropriate findings.
A. Standard of Review
The appeal of a denial of a speedy trial motion raises a question of constitutional law, which is subject to de novo review. State v. Johnson , --- N.C. App. ----, ----, 795 S.E.2d 126, 131 (2016) (citation omitted).
B. Analysis
The State argues this issue is not properly before this Court. Defendant filed his pro se motion for a speedy trial on 14 April 2015. At that time, Defendant was represented by retained counsel. It is well established that a defendant cannot file motions on his own behalf and also be represented by counsel. State v. Williams , 363 N.C. 689, 700, 686 S.E.2d 493, 501 (2009). Nothing in the record indicates Defendants appointed trial counsel adopted his pro se motion:
my client I believe wishes to address the Court prior to going further. Hes indicated to me, as I heard, his own motions that he is wanting to make.
The defendant in Williams argued the trial court erred by declining to rule on his pro se motions, including his pro se motion for speedy trial. Id. The Supreme Court found this refusal to rule on the defendants pro se motion was not error. Id. Unlike in Williams , the trial court in the present case ruled on Defendants pro se motion for speedy trial, stating, the defendants motion for a speedy trial is hereby denied.
Where a trial court has specifically considered and denied a defendants constitutional argument, this Court has granted review. E.g. , In re Hall , 238 N.C. App. 322, 329, 768 S.E.2d 39, 44 (2014) (concerning ex post facto violation); State v. Kirkwood , 229 N.C. App. 656, 665-66, 747 S.E.2d 730, 736-37 (2013) (trial courts sua sponte ruling on double jeopardy issue gave this Court jurisdiction over the issue on appeal). Defendants argument is properly before this Court. Because this is a question of law, subject to de novo review, we consider the matter anew. Johnson , --- N.C. App. at ----, 795 S.E.2d at 131.
A defendant is guaranteed the right to a speedy trial under the Constitution of the United States and the North Carolina Constitution. U.S. Const. amend. VI ; N.C. Const. art. I, § 18. The Supreme Court of the United States set out a four-factor balancing test to determine whether a defendants right to a speedy trial under the Constitution of the United States was violated. Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972).
Reviewing courts are to consider the [l]ength of the delay, the reason for the delay, the defendants assertion of his right, and prejudice to the defendant. Id. North Carolina adopted this four-factor balancing test to analyze purported speedy trial violations under our states constitution. State v. Grooms , 353 N.C. 50, 62, 540 S.E.2d 713, 721 (2000).
The length of the delay is not per se determinative of whether a defendants right to a speedy trial has been violated. Id. The Supreme Court of the United States has noted a delay becomes presumptively prejudicial as it approaches one year, which is enough to warrant further analysis. Doggett v. United States , 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 2691 n.1, 120 L.Ed.2d 520, 528 n.1 (1992).
Here, the twenty-eight months delay between Defendants arrest and trial is enough to trigger further analysis. While the trial court was not obligated to consider Defendants pro se motion for speedy trial while he was represented by counsel, because it did so, it erred by not considering all the Barker factors and making appropriate findings. The record on appeal is insufficiently developed for this analysis and determination to be made by this Court.
A full evidentiary hearing is required in order for the superior court to hear and make an appropriate assessment of Defendants arguments. If the superior court ultimately concludes Defendants right to a speedy trial was violated, the only remedy is dismissing the indictment and vacating those convictions. State v. Wilkerson , --- N.C. App. ----, ----, 810 S.E.2d 389, 396 (2018). We remand to the trial court for a proper Barker v. Wingo analysis and appropriate findings.
VI. Motion for Mistrial
Defendant argues the trial court erred by denying his motion for mistrial when an expert witness opined that Tonya was neglected because her mother allowed her to stay with Defendant, a person who had a history of criminality. We disagree.
A. Standard of Review
A trial court is required to call a mistrial if there occurs during the trial an error or legal defect in the proceedings ... resulting in substantial and irreparable prejudice to the defendants case. N.C. Gen. Stat. § 15A-1061 (2017). Whether or not there has been substantial and irreparable prejudice is a matter that rests within the discretion of the trial court. State v. Mills , 39 N.C. App. 47, 50, 249 S.E.2d 446, 448 (1978), cert. denied , 296 N.C. 588, 254 S.E.2d 33 (1979). [A]bsent a showing of abuse of that discretion, the decision of the trial court will not be disturbed on appeal. Id.
B. Analysis
Dr. Elizabeth Witman, the director of SAFEchild Advocacy Center, testified about Tonyas medical evaluation and diagnostic interview. When asked whether she had any concerns about Tonyas biological family, Dr. Witman replied:
I did. We always try to look very carefully at those issues and it was my opinion sometimes Im not describing all these motivation to why a childs been mission [sic] treated or neglected. It could be to a number of factors. It doesnt necessarily always mean ill intention, but I think because of her mothers homelessness and probably financial struggles and some other issues it was my opinion that she was neglected by being allowed to live with a person who had a history of criminality.
Defense counsel immediately moved to strike, and the trial court sustained the objection and instructed the jury:
Ladies and gentlemen, with regard to the last remark by this witness you are to disregard that remark and not consider it as part of your consideration towards a deliberation to a verdict in this case.
The trial court denied defense counsels motion for mistrial.
When the trial court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured. State v. Black , 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991). Defendant argues some evidence is so inherently prejudicial that its influence on the jury cannot be cured with an instruction to disregard it and cites to State v. Hunt , 287 N.C. 360, 215 S.E.2d 40 (1975), and State v. Aycoth , 270 N.C. 270, 154 S.E.2d 59 (1967), for support.
In Hunt , evidence of the defendants police record, and that he was on probation for possession of marijuana and assault was improperly introduced during cross-examination of a defense witness. 287 N.C. at 372-73, 215 S.E.2d at 48. Shortly thereafter, court adjourned for the day. Id. at 373, 215 S.E.2d at 48. Defense counsel moved for a mistrial at the beginning of court the next day. Id. The trial court denied that motion, but instructed the jury to disregard the testimony. Id.
The Supreme Court found the instructions then given were not specific as to the content of the challenged questions, and by this time the evidence must have found secure lodgment in the minds of the jurors. Id. at 376, 215 S.E.2d at 50. The Court also limited its holding to the specific circumstances of [that] capital case. Id. at 376, 215 S.E.2d at 51.
In Aycoth , during cross-examination, a States witness revealed the defendant had been previously arrested on another charge and had been indicted for murder. 270 N.C. at 272, 154 S.E.2d at 60. Defense counsel immediately objected and moved to strike, and the trial court allowed the motion and instructed the jury to not consider the previous statements. Id. Defense counsel moved for a mistrial after the State rested, which was denied. Id. The Supreme Court found the incompetent evidence to the effect [the defendant] had been or was under indictment for murder was of such serious nature that its prejudicial effect was not erased by the courts quoted instruction. Id. at 273, 154 S.E.2d at 61.
Unlike in Hunt , the trial court immediately sustained the objection and instructed the jury to disregard that remark and not consider it. Further, and unlike in Aycoth , the disclosure of Defendants history of criminality was vague and did not suggest Defendant had previously been convicted of anything. Defendant has failed to show the trial court abused its discretion in denying Defendants motion for mistrial. Defendants arguments are overruled. VII. Ineffective Assistance of Counsel
Defendant argues he was denied effective assistance of counsel when his attorney stated it would be pointless to proceed with a SBM hearing. This statement came after the prosecutor acknowledged the cumulative length of Defendants sentences might make a SBM determination a moot point, but was prepared to present evidence nonetheless. Because the trial court failed to comply with statutory mandates, we need not reach the merits of Defendants argument.
We initially address whether this issue is properly before this Court. Defendant did not file written notice of appeal for the SBM determination, as required by N.C. R. App. P. 3. Defendant filed a petition for writ of certiorari, requesting this Court to consider his arguments on the merits. This Court has previously granted petitions for certiorari when a defendant has given oral notice of appeal, but failed to comply with Rule 3 for an appeal of the SBM determination. State v. Dye , --- N.C. App. ----, ----, 802 S.E.2d 737, 741 (2017) ; State v. Green , 229 N.C. App. 121, 128, 746 S.E.2d 457, 464 (2013).
A writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.] N.C. R. App. P. 21(a)(1). Defendant argues issuing a writ of certiorari is appropriate because the trial court erroneously concluded Defendants convictions were aggravated offenses under N.C. Gen. Stat. § 14-208.6(1a) (2017). Aggravated offenses include those where a defendant (1) engaged in a penetrative sexual act with a victim of any age through the use of force or the threat of serious violence or (2) engaged in a penetrative sexual act with a child under twelve. Id. We agree, grant Defendants petition, and issue the writ.
When a defendant is convicted of a reportable offense under the sex offender registration scheme, the district attorney is required to present evidence at the sentencing phase of whether: (1) the defendant has been classified as a sexually violent predator; (2) the defendant is a recidivist; (3) the conviction is an aggravated offense; (4) the sexual act or rape was of a victim under thirteen and the defendant was an adult; or, (5) the offense involved physical, mental, or sexual abuse of a minor. N.C. Gen. Stat. § 14-208.40A(a) (2017).
In this case, no evidence was presented prior to or to support the trial courts determination that Defendant would be subject to SBM for the remainder of his life. We vacate the order requiring Defendant to enroll in SBM for the remainder of his life, and remand for proper analysis and determination under N.C. Gen. Stat. § 14-208.40A. See State v. Davison , 201 N.C. App. 354, 364, 689 S.E.2d 510, 517 (2009).
VIII. Conclusion
The State presented sufficient evidence of Defendants parental role. The trial court did not err by denying Defendants motion to dismiss the charge of sexual offense by substitute parent. The trial court did not abuse its discretion in denying Defendants motion for mistrial.
The trial court erred in failing to conduct a proper analysis of the Barker v. Wingo factors prior to denying Defendants pro se motion for speedy trial. We remand this issue to the trial court for an appropriate analysis and findings.
We vacate Defendants SBM determination and remand for the trial court to conduct a proper determination in accordance with N.C. Gen. Stat. § 14-208.40A. It is so ordered.
NO ERROR IN PART, VACATED IN PART, AND REMANDED.
Judges ZACHARY and COLLINS concur.