IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-1107
Filed 1 October 2024
Davidson County, No. 21CRS51598-600
STATE OF NORTH CAROLINA
v.
MARK ANTHONY JENKINS, Defendant.
Appeal by Defendant from judgment entered 2 March 2023 by Judge Lori I.
Hamilton in Davidson County Superior Court. Heard in the Court of Appeals 14
August 2024.
Attorney General Joshua H. Stein, by Assistant Attorney General Danielle M. Orait, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C. Franke, for the defendant-appellant.
STADING, Judge.
Mark Anthony Jenkins (“Defendant”) appeals from a jury’s verdict finding him
guilty of three counts of indecent liberties with a child and two counts of statutory
sexual offense with a child fifteen years of age or younger. Defendant contends the
trial court improperly sentenced him. After careful review, we discern no error.
I. Background STATE V. JENKINS
Opinion of the Court
On 8 November 2021, Defendant was indicted for three counts of indecent
liberties with a child and two counts of statutory sexual offense with a child fifteen
years of age or younger. The victims were Defendant’s step-grandchildren, Tara and
Kate.1 Defendant’s appeal concerns Defendant’s conviction in case number 21 CRS
51598 for the offense of indecent liberties upon Tara.
At trial, Tara testified that Defendant began giving her leg massages when she
was “probably about . . . [in] the fifth grade” and escalations of Defendant’s conduct
continued “often” until she was about “14 [or] 15.” As the conduct developed, Tara
recounted being uncomfortable and scared. As time went on, the leg massages turned
into more consistent touching, with Defendant moving his hands further up Tara’s
thigh to her private parts. She recalled that Defendant would open her legs and
eventually move his hands underneath her shorts. Tara also described how
Defendant showed her pornographic material and asked to see her breasts.
Defendant informed Tara that if she told anyone, “he’s going to go to jail and nobody’s
going to believe [her].”
In 2011, the General Assembly enacted the “Justice Reinvestment Act,” which
amended N.C. Gen. Stat. § 15A-1340.17 (2023). See 2011 N.C. Sess. Laws 192, sec.
2.(e). Before the amendment became effective, a prior record level one offender
convicted of a class F felony, occurring between 1 December 2009 and 30 November
1 Pseudonyms are used to protect the identity of minors. See N.C. R. App. P. 42(b) (2023).
-2- STATE V. JENKINS
2011, would be sentenced at the top of the presumptive range at sixteen to twenty
months. See N.C. Gen. Stat. § 15A-1340.17(d) (eff. 1 Dec. 2009). After the
amendment became effective, a prior record level one offender convicted of a class F
felony, occurring on or after 1 December 2011, would be sentenced at the top of the
presumptive range at sixteen to twenty-nine months. See N.C. Gen. Stat. § 15A-
1340.17(d) (eff. 1 Dec. 2011). In essence, the amendment created nine months of post-
release supervision for Class F through I felonies. Id.
At the conclusion of Defendant’s trial, a jury found him guilty of two counts of
statutory sex offenses with a child less than or equal to fifteen years of age and three
counts of indecent liberties with a child. Under case number 21 CRS 51598,
Defendant was convicted of indecent liberties with a child and sentenced as provided
under the Justice Reinvestment Act to serve an active term of sixteen to twenty-nine
months. N.C. Gen. Stat. § 15A-1340.17(d) (2023). Defendant timely entered his
notice of appeal.
II. Analysis
Defendant argues that the State’s evidence was unclear as to whether he
committed the offenses before or after 1 December 2011, and he should have been
sentenced under the version of N.C. Gen. Stat. § 15A-1340.17 for “offenses committed
between 1 December 2009 and 1 December 2011.” Thus, Defendant argues the trial
court committed reversible error by sentencing him under the Justice Reinvestment
Act. “[N]onconstitutional sentencing issues are preserved without contemporaneous
-3- STATE V. JENKINS
objection. . . .” State v. Meadows, 371 N.C. 742, 749, 821 S.E.2d 402, 407 (2018).
When a defendant challenges the sentence imposed by the trial court, the “standard
of review is ‘whether [the] sentence is supported by evidence introduced at the trial
and sentencing hearing.’” State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685
(1997) (quoting N.C. Gen. Stat. § 15A-1444(a1) (2023)).
Defendant contends that State v. Poston controls this appeal. 162 N.C. App.
642, 591 S.E.2d 898. After careful review, we disagree. The defendant in Poston was
indicted for sex crimes committed against a minor, and the indictment alleged the
offenses occurred during the period of 1 June 1994 to 31 July 1994, and from 8 October
1997 to 16 October 1997. Poston, 162 N.C. App. at 645–46, 591 S.E.2d at 901.
Effective 1 October 1994, the General Assembly enacted the Structured Sentencing
Act to replace the Fair Sentencing Act. Id. at 646, 591 S.E.2d at 901. The defendant
was sentenced under the Fair Sentencing Act for crimes committed before 1 October
1994. Id. at 646, 591 S.E.2d at 901. During the trial, however, testimony revealed
the offenses occurred when the victim was “around seven” years of age, and the victim
turned seven well after the enactment of the Structured Sentencing Act. Id. at 651,
591 S.E.2d at 904. This Court held “[t]he testimony that [the sexual offenses]
occurred when [the victim] was ‘[a]round seven’ … supports only a suspicion or
conjecture that the crime occurred prior to 1 October 1994.” Id. As such, Poston
instructs when more than one sentencing regime could apply for offenses occurring
during a range of time, there must be more than “suspicion or conjecture” that the
-4- STATE V. JENKINS
offensive acts occurred after the new regime became effective. Id. at 651, 591 S.E.2d
at 904.
Here, the State’s evidence supports more than mere “suspicion and conjecture”
that Defendant committed indecent liberties against Tara both before and after the
1 December 2011 effective date of the Justice Reinvestment Act. Id. Early in her
direct examination at trial on 28 February 2023, Tara testified she was then twenty-
two years old and gave her date of birth.2 Tara stated she first met Defendant
“[a]round 2007.” Next, Tara was asked about the beginning of the conduct:
PROSECUTOR: Now, sort of drawing your attention to middle school. Around fifth or sixth grade, were you going over to your grandparents’ house a lot?
TARA: Yes.
PROSECUTOR: And during that time frame, did anything ever happen with the defendant that made you feel uncomfortable?
PROSECUTOR: If you could talk to the jury about when that started.
TARA: I would say probably about, yeah, fifth grade, we would be over there and I would be watching a movie and there would be, like, leg massages. And at first it was, like, I'm a kid, so I'm just going to think, oh, just a fine little leg massage.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-1107
Filed 1 October 2024
Davidson County, No. 21CRS51598-600
STATE OF NORTH CAROLINA
v.
MARK ANTHONY JENKINS, Defendant.
Appeal by Defendant from judgment entered 2 March 2023 by Judge Lori I.
Hamilton in Davidson County Superior Court. Heard in the Court of Appeals 14
August 2024.
Attorney General Joshua H. Stein, by Assistant Attorney General Danielle M. Orait, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C. Franke, for the defendant-appellant.
STADING, Judge.
Mark Anthony Jenkins (“Defendant”) appeals from a jury’s verdict finding him
guilty of three counts of indecent liberties with a child and two counts of statutory
sexual offense with a child fifteen years of age or younger. Defendant contends the
trial court improperly sentenced him. After careful review, we discern no error.
I. Background STATE V. JENKINS
Opinion of the Court
On 8 November 2021, Defendant was indicted for three counts of indecent
liberties with a child and two counts of statutory sexual offense with a child fifteen
years of age or younger. The victims were Defendant’s step-grandchildren, Tara and
Kate.1 Defendant’s appeal concerns Defendant’s conviction in case number 21 CRS
51598 for the offense of indecent liberties upon Tara.
At trial, Tara testified that Defendant began giving her leg massages when she
was “probably about . . . [in] the fifth grade” and escalations of Defendant’s conduct
continued “often” until she was about “14 [or] 15.” As the conduct developed, Tara
recounted being uncomfortable and scared. As time went on, the leg massages turned
into more consistent touching, with Defendant moving his hands further up Tara’s
thigh to her private parts. She recalled that Defendant would open her legs and
eventually move his hands underneath her shorts. Tara also described how
Defendant showed her pornographic material and asked to see her breasts.
Defendant informed Tara that if she told anyone, “he’s going to go to jail and nobody’s
going to believe [her].”
In 2011, the General Assembly enacted the “Justice Reinvestment Act,” which
amended N.C. Gen. Stat. § 15A-1340.17 (2023). See 2011 N.C. Sess. Laws 192, sec.
2.(e). Before the amendment became effective, a prior record level one offender
convicted of a class F felony, occurring between 1 December 2009 and 30 November
1 Pseudonyms are used to protect the identity of minors. See N.C. R. App. P. 42(b) (2023).
-2- STATE V. JENKINS
2011, would be sentenced at the top of the presumptive range at sixteen to twenty
months. See N.C. Gen. Stat. § 15A-1340.17(d) (eff. 1 Dec. 2009). After the
amendment became effective, a prior record level one offender convicted of a class F
felony, occurring on or after 1 December 2011, would be sentenced at the top of the
presumptive range at sixteen to twenty-nine months. See N.C. Gen. Stat. § 15A-
1340.17(d) (eff. 1 Dec. 2011). In essence, the amendment created nine months of post-
release supervision for Class F through I felonies. Id.
At the conclusion of Defendant’s trial, a jury found him guilty of two counts of
statutory sex offenses with a child less than or equal to fifteen years of age and three
counts of indecent liberties with a child. Under case number 21 CRS 51598,
Defendant was convicted of indecent liberties with a child and sentenced as provided
under the Justice Reinvestment Act to serve an active term of sixteen to twenty-nine
months. N.C. Gen. Stat. § 15A-1340.17(d) (2023). Defendant timely entered his
notice of appeal.
II. Analysis
Defendant argues that the State’s evidence was unclear as to whether he
committed the offenses before or after 1 December 2011, and he should have been
sentenced under the version of N.C. Gen. Stat. § 15A-1340.17 for “offenses committed
between 1 December 2009 and 1 December 2011.” Thus, Defendant argues the trial
court committed reversible error by sentencing him under the Justice Reinvestment
Act. “[N]onconstitutional sentencing issues are preserved without contemporaneous
-3- STATE V. JENKINS
objection. . . .” State v. Meadows, 371 N.C. 742, 749, 821 S.E.2d 402, 407 (2018).
When a defendant challenges the sentence imposed by the trial court, the “standard
of review is ‘whether [the] sentence is supported by evidence introduced at the trial
and sentencing hearing.’” State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685
(1997) (quoting N.C. Gen. Stat. § 15A-1444(a1) (2023)).
Defendant contends that State v. Poston controls this appeal. 162 N.C. App.
642, 591 S.E.2d 898. After careful review, we disagree. The defendant in Poston was
indicted for sex crimes committed against a minor, and the indictment alleged the
offenses occurred during the period of 1 June 1994 to 31 July 1994, and from 8 October
1997 to 16 October 1997. Poston, 162 N.C. App. at 645–46, 591 S.E.2d at 901.
Effective 1 October 1994, the General Assembly enacted the Structured Sentencing
Act to replace the Fair Sentencing Act. Id. at 646, 591 S.E.2d at 901. The defendant
was sentenced under the Fair Sentencing Act for crimes committed before 1 October
1994. Id. at 646, 591 S.E.2d at 901. During the trial, however, testimony revealed
the offenses occurred when the victim was “around seven” years of age, and the victim
turned seven well after the enactment of the Structured Sentencing Act. Id. at 651,
591 S.E.2d at 904. This Court held “[t]he testimony that [the sexual offenses]
occurred when [the victim] was ‘[a]round seven’ … supports only a suspicion or
conjecture that the crime occurred prior to 1 October 1994.” Id. As such, Poston
instructs when more than one sentencing regime could apply for offenses occurring
during a range of time, there must be more than “suspicion or conjecture” that the
-4- STATE V. JENKINS
offensive acts occurred after the new regime became effective. Id. at 651, 591 S.E.2d
at 904.
Here, the State’s evidence supports more than mere “suspicion and conjecture”
that Defendant committed indecent liberties against Tara both before and after the
1 December 2011 effective date of the Justice Reinvestment Act. Id. Early in her
direct examination at trial on 28 February 2023, Tara testified she was then twenty-
two years old and gave her date of birth.2 Tara stated she first met Defendant
“[a]round 2007.” Next, Tara was asked about the beginning of the conduct:
PROSECUTOR: Now, sort of drawing your attention to middle school. Around fifth or sixth grade, were you going over to your grandparents’ house a lot?
TARA: Yes.
PROSECUTOR: And during that time frame, did anything ever happen with the defendant that made you feel uncomfortable?
PROSECUTOR: If you could talk to the jury about when that started.
TARA: I would say probably about, yeah, fifth grade, we would be over there and I would be watching a movie and there would be, like, leg massages. And at first it was, like, I'm a kid, so I'm just going to think, oh, just a fine little leg massage. But then after that, it would be going a little bit up more on my thighs and then it would just be a constant thing.
2 Although the victim testified to her date of birth at trial, this matter is under seal and her
personally identifying information is not stated herein.
-5- STATE V. JENKINS
Then, Tara explained when Defendant’s conduct ceased:
PROSECUTOR: How often do you think the massaging of the legs and moving his hand up, how often do you think that happened?
TARA: Often. Pretty frequently.
PROSECUTOR: Was it like every time you went over there?
TARA: Yes. Until about the age of, like, 15 -- 14, 15.
Even drawing inferences from this testimony that are mathematically
favorable to Defendant, this evidence tends to show the conduct continued until at
least 2014—well beyond the Justice Reinvestment Act’s 1 December 2011 effective
date. Thus, the evidence presented at trial is not mere “suspicion or conjecture” and
adequately supports the sentence rendered by the trial court. See Poston, 162 N.C.
App at 651, 591 S.E.2d at 904; see also Deese, 127 N.C. App. at 540, 491 S.E.2d at
685. Accordingly, we discern no error in Defendant’s sentencing.
III. Conclusion
We hold the trial court’s imposition of Defendant’s sentence is without error.
NO ERROR.
Judges TYSON and THOMPSON concur.
-6-