State v. Graham ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1362
Filed: 17 March 2020
Clay County, No. 12 CRS 181
STATE OF NORTH CAROLINA
v.
JOHN D. GRAHAM
Appeal by defendant from judgment entered 13 December 2016 by Judge Eric
Levinson in Clay County Superior Court and order entered 13 May 2019 by Judge
Athena F. Brooks in Clay County Superior Court. Heard in the Court of Appeals
7 January 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Erin O’Kane
Scott and Special Deputy Attorney General Benjamin O. Zellinger, for the State.
Appellant Defender Glenn Gerding, by Assistant Appellate Defender Daniel K.
Shatz, for defendant.
ARROWOOD, Judge.
John D. Graham (“defendant”) appeals from judgment entered upon his
conviction for sexual offense against a child under age thirteen and order denying his
Motion for Appropriate Relief (“MAR”). We find no error in the jury trial phase of
defendant’s trial. However, we vacate the trial court’s order imposing lifetime
satellite-based monitoring (“SBM”) upon defendant, with remand for the trial court
to conduct an evidentiary hearing on its appropriateness pursuant to Grady v. North
STATE V. GRAHAM
Opinion of the Court
Carolina, 575 U.S. 306, 191 L. Ed. 2d 459 (2015), and its progeny. Furthermore, we
agree that the trial court’s order denying defendant’s MAR is insufficient, and vacate
and remand for entry of an order not inconsistent with this opinion.
I. Background
A. Trial
On 11 September 2012, defendant was indicted on four counts each of engaging
in a sexual act with a child under thirteen years of age and taking indecent liberties
with a child. Defendant’s case came on for trial in the criminal session of Clay County
Superior Court before the Honorable Eric Levinson on 5 December 2016.
The State’s key witness at trial was the alleged victim, A.M.D. 1 A.M.D.’s
testimony was to the effect that defendant had touched the outside and inside of her
vagina with his fingers on numerous occasions at four separate residences where she
lived with her mother, Cassie D., over a period between one and two years. A.M.D.
testified in greatest detail regarding defendant’s sexual abuse of her at the residence
referred to as “the Ruby Falls house.” A.M.D. specifically mentioned three instances
in which defendant inserted his finger into her vagina at the Ruby Falls house: on
the couch in the living room while the family was watching television, on defendant’s
bed in the basement while her siblings were playing videogames in the same room,
and in her own room while defendant read her a book. A.M.D. also mentioned telling
1 Initials are used to protect the identity of the victim and for ease of reading.
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her step-grandmother (“Ms. Hester”) that defendant hurt her and gesturing toward
her genitals when asked where.
The State also presented three witnesses who testified that A.M.D. had made
consistent statements to them on prior occasions. John Tucker, P.A., (“Mr. Tucker”)
testified that, during his medical examination of A.M.D. in 2012, she told him that
defendant hurt her and touched or penetrated her vagina “[w]ith his hand” “[m]ore
than one time[,]” but did not “stick a stick inside” of her. A.M.D.’s brother T.D.
testified that when he asked her if defendant ever molested her, “she said yes but she
never gave the details.”
Ms. Hester testified that when A.M.D. was visiting her on 30 May 2012,
A.M.D. mentioned that defendant was her mother’s boyfriend and was living with the
family at the Ruby Falls house. A.M.D. told her that defendant “hurts” her, and when
asked where, “she pointed to her private parts.” Ms. Hester further testified that,
around 2014, A.M.D. provided her with additional details on the molestation. Many
of these additional details were consistent with A.M.D.’s trial testimony: “at the
basement [of the Ruby Falls] house when they were watching TV . . . [defendant]
would always touch her private parts and hurt her there[;]” that her “mommy was
present” when defendant molested her while watching TV in the basement of the
Ruby Falls house; and “that he used his fingers a lot with her private parts, placing
them in her private parts.”
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However, some of A.M.D.’s prior statements offered by Ms. Hester involved
matters to which she did not testify, such as that defendant “made he[r] put his
private parts in her mouth and that he had choked her[,]” inserted objects into her
private parts, and “had hurt her on her back side.” Defense counsel objected to the
first instance of such additional information. The trial court gave a limiting
instruction that the prior statements could only be considered to assess the credibility
of A.M.D.’s trial testimony and allowed questioning to proceed.
Detective Tony Ellis of the Clay County Sheriff’s Department testified that he
responded to the hospital on 2 June 2012 in response to a report of child molestation
involving A.M.D. He set up a forensic interview for A.M.D. with a local child advocacy
specialist on 4 June 2012. This interview was recorded and played for the jury. After
ascertaining that the “Roger” A.M.D. alleged sexually abused her was defendant,
Detective Ellis set about looking for him. Detective Ellis was unable to locate
defendant at the residence of Cassie D., nor at any of his known prior addresses in
North Carolina and Georgia. Detective Ellis then enlisted the help of the United
States Marshals in locating defendant. After refreshing his recollection with the
order for defendant’s arrest, Detective Ellis testified that the Marshals subsequently
returned defendant to the Clay County Sheriff’s Department on 14 November 2012
and communicated to Detective Ellis that defendant had been apprehended and
extradited from Puerto Rico.
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At the close of its evidence, the State dismissed the four indecent liberties
charges against defendant. Defendant’s only witness was A.M.D.’s maternal aunt,
Holly D. Holly D. testified that A.M.D. told her on two occasions that her accusations
against defendant were false and that A.M.D. had falsely accused defendant because
her stepmother Lora D. had threatened to kill her mother if she did not, and bribed
her with a horse and other gifts if she did.
On 9 December 2016, the jury returned a verdict finding defendant guilty of
one count of engaging in a sexual act with a child under thirteen years of age and not
guilty of the remaining three counts of the same offense. The charge for which
defendant was found guilty corresponded to the alleged events at the Ruby Falls
house.
B. Sentencing
The trial court sentenced defendant on 13 December 2016. The court first set
about calculating defendant’s prior record level for the purpose of structured
sentencing. The State introduced evidence of defendant’s prior convictions from
Georgia, including statutory rape and child molestation, thru a copy of his indictment
and plea paperwork for the convictions. Though presented by the State and
acknowledged by the court, a copy of the Georgia statute under which defendant had
been convicted was never placed in the record.
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After some discussion with counsel for defendant and the State, the court found
that the Georgia statutory rape offense was substantially similar to North Carolina’s
own statutory rape law, which is a Class B1 felony. Thus, the court treated
defendant’s prior conviction as a Class B1 felony and assigned him nine prior record
points. The court also assigned defendant one point for escaping the Clay County
Detention Center while awaiting his trial, for a total of ten points corresponding to
Prior Record Level IV. The court sentenced defendant to 335 to 462 months’
imprisonment and ordered him to register as a sex offender upon his release.
Next, the court considered the State’s proposed order subjecting defendant to
North Carolina’s SBM program for life after his release from prison. Counsel for
defendant and the State agreed that the court was required to hold an evidentiary
hearing, pursuant to Grady v. North Carolina, 575 U.S. 306, 191 L. Ed. 2d 459, at
which the State must prove that it is reasonable to subject defendant to the SBM
program for life. The State offered several times to proceed with such a hearing. The
trial court ignored the State’s offer to proceed introducing evidence in a Grady
hearing. Rather, after taking notice of the facts adduced at trial, the court summarily
gave its reasons for finding lifetime enrollment in the SBM program reasonable for
defendant and entered the order. The court found lifetime SBM reasonable because
defendant had been convicted of statutory rape of Cassie D. in Georgia, served eight
years in prison, immediately absconded from parole upon his release, assumed a false
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name, and moved in with his former victim and began sexually abusing her daughter.
Defendant gave oral notice of appeal.
C. Motion for Appropriate Relief
During the pendency of his appeal, defendant filed a MAR with this Court on
24 August 2018. The motion claimed that A.M.D. had recanted on her trial testimony
and included an affidavit to that effect allegedly written by A.M.D. On
15 October 2018, we remanded defendant’s motion to the Clay County Superior Court
with instructions to conduct an evidentiary hearing on the motion (“the MAR
hearing”) pursuant to State v. Britt, 320 N.C. 705, 715, 360 S.E.2d 660, 665 (1987),
within sixty days.
Due to scheduling conflicts with the prosecuting attorney and the Clay County
Superior Court’s failure to hold a criminal session of court between the weeks of
3 September 2018 and 17 December 2018, defendant’s hearing was not held until
30 April 2019, over eight months after filing his motion with this Court.
The MAR hearing was held before the Honorable Athena F. Brooks from
30 April to 3 May 2019. At the hearing, A.M.D. testified that she fabricated her
accusations of sexual abuse against defendant at trial due to bribes and threats from
Lora D. Defendant introduced a letter into evidence that was alleged to have been
written by A.M.D. and left on her mother’s desk in January of 2018, when A.M.D.
was living with her father and stepmother. The letter made admissions consistent
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with A.M.D.’s hearing testimony. Cassie D. also testified at the hearing that, prior
to trial, A.M.D. had also told her that she was falsely accusing defendant due to
threats and bribes from Lora D. Cassie D. further testified that she had regained
emergency custody of her children after Lora D. allegedly hurt A.M.D. on several
occasions.
The State produced and played several recordings of phone calls between
Cassie D. and defendant during his incarceration, which took place from July 2017 to
March 2019. Many of these conversations, including those prior to the alleged date
of A.M.D.’s letter in January 2018, discussed the romance between Cassie D. and
defendant and the potential for A.M.D. to provide a recantation to aid in his appeal.
A child specialist investigator with the Clay County District Attorney’s Office
testified that she had been present when A.M.D. had been interviewed prior to trial,
and the child never mentioned any concerns about Lora D.
In its order, the court recited the relevant testimony from trial and the hearing,
including that: (a) A.M.D. testified at the hearing in much greater detail about the
occasions in which she alleged defendant had abused her, including details such as
the movie being watched, but denied that any abuse occurred on these occasions as
she had stated at trial; (b) A.M.D. testified that she lied at trial because Lora D.
threatened and bribed her; and (c) Holly D. gave testimony at trial to the same effect.
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Opinion of the Court
The court found that it was suspicious for A.M.D. to recall additional details at
the hearing, many years further removed from the events in question. The court
further noted that A.M.D.’s mother and defendant engaged in frequent telephone
conversations regarding defendant’s appeal, including how a recantation from A.M.D.
would aid his appeal, both before and after A.M.D. allegedly wrote her mother a letter
admitting she fabricated her accusations. The court found that it did not believe
A.M.D.’s testimony regarding the notarization of her affidavit because her testimony
on this matter changed between the two days of the hearing, after hearing her
mother’s testimony.
From these findings, the court in turn found that “the child was feeling some
form of pressure to make these statements [at the hearing].” The court declined “to
speculate as to whether this was self-induced or from an external source.” Based
upon this determination, the court concluded as a matter of law that it was “not
satisfied that the testimony given by [A.M.D.] at the trial on this matter in December
2016 was false[,]” and thus a finding that “false testimony at the trial would [cause]
a different result would not have been possible.” Accordingly, the court denied
defendant’s MAR.
II. Discussion
On appeal, defendant argues that the trial court: (a) erred in admitting
impermissible hearsay that did not corroborate A.M.D.’s testimony; (b) plainly erred
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in admitting testimony regarding his extradition from Puerto Rico and instructing
the jury that this could be considered as evidence of flight; (c) erred in the calculation
of defendant’s prior record level; and (d) erred by ordering that defendant be subjected
to lifetime SBM at the expiration of his active sentence. Furthermore, defendant
argues that the court abused its discretion in its order denying his MAR. We address
each argument in turn.
A. Allowing Prior Statement Testimony of Ms. Hester
Defendant first argues that the trial court erred in allowing Ms. Hester to
testify to prior statements A.M.D. made to her. Defendant contends that these
statements were inadmissible hearsay, rather than admissible prior statements
corroborating a witness’s trial testimony. We disagree.
“A trial court’s determination that evidence is admissible as corroborative
evidence is reviewed for abuse of discretion.” State v. Cook, 195 N.C. App. 230, 243,
672 S.E.2d 25, 33 (2009) (citation omitted). “Prior consistent statements of a witness
are admissible as corroborative evidence even when the witness has not been
impeached.” State v. Ramey, 318 N.C. 457, 468, 349 S.E.2d 566, 573 (1986) (citation
omitted). In State v. Johnson, we summarized the distinction between inadmissible
hearsay and admissible prior corroborative statements as follows:
Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered
into evidence to prove the truth of the matter asserted.”
N.C. Gen. Stat. § 8C-1, Rule 801 (2007). . . .
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Statements properly offered to corroborate former
statements of a witness are “not offered for their
substantive truth and consequently [are] not hearsay.”
State v. Levan, 326 N.C. 155, 167, 388 S.E.2d 429, 435
(1990).
209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011) (brackets in original). We also
summarized the standard for determining whether a prior statement is corroborative:
Corroborating statements are those statements that tend
to strengthen; to add weight or credibility to a thing by
additional and confirming facts or evidence. Nevertheless,
if the testimony offered in corroboration is generally
consistent with the witness’s testimony, slight variations
will not render it inadmissible. . . . Such variations only
affect the credibility of the evidence which is always for the
jury. . . . [C]orroborative testimony may contain new or
additional information when it tends to strengthen and add
credibility to the testimony which it corroborates . . . .
Id. (internal quotation marks and citations omitted).
In the instant case, A.M.D. testified at trial that defendant touched the interior
and exterior of her vagina with his hands and fingers on numerous occasions at the
Ruby Falls house. Three prior statements of A.M.D. were admitted to corroborate
her testimony. The prior statements offered by Mr. Tucker and T.D. are unchallenged
on appeal.
Defendant only challenges A.M.D.’s prior statement to Ms. Hester. Defendant
argues that, even with the limiting instruction, the trial court erred in allowing Ms.
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Hester’s testimony recounting A.M.D.’s prior statements related to fellatio, anal
molestation, and the insertion of objects into A.M.D.’s private parts.
During her testimony, A.M.D. did not mention any such acts when asked when,
where, and how defendant hurt her. A.M.D. did say that she only saw defendant’s
penis once when she went into the basement to wake him up, and stated that it did
not touch her on that occasion. Thus, A.M.D.’s testimony only indirectly contradicts
the challenged prior statement related to fellatio. Her testimony is silent regarding
anal molestation and use of objects.
Accordingly, the instant case is different than those in which prior statements
were held non-corroborative because they directly contradicted several aspects of a
witness’s testimony. See, e.g., State v. Frogge, 345 N.C. 614, 617, 481 S.E.2d 278, 279-
80 (1997) (prior statements were not corroborative where: (a) witness testified that
defendant procured a knife after victim hit him with metal bar, whereas prior
statement indicated witness did not recall whether defendant or victim first wielded
weapon; (b) witness testified that defendant went to party after murdering victims
and returned to scene of crime and staged robbery, whereas prior statement indicated
defendant staged robbery prior to leaving for party; and (c) witness testified that
defendant did not tell him why he stabbed victim, whereas prior statement indicated
that defendant told witness he stabbed victim because he hated her). Nor is it one in
which the challenged prior statement is far removed from its original declarant. See
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State v. Stills, 310 N.C. 410, 416, 312 S.E.2d 443, 447 (1984) (noting that, where prior
statement offered to corroborate another corroborating witness was partially
inconsistent with testimony of original declarant, “justify[ing] the admission into
evidence of hearsay statements three or four times removed from the original
declarant under the guise of corroborating the corroborative witnesses is
unacceptable”) (emphasis in original).
Here, A.M.D. did not confirm, deny, or speak of these additional acts in any
manner during her testimony. Her testimony that she only saw defendant’s penis
once and it did not touch her on that occasion indirectly contradicts Ms. Hester’s
testimony regarding fellatio. However, the vast majority of A.M.D.’s prior statements
offered by Ms. Hester conformed with A.M.D.’s testimony that defendant penetrated
her vagina with his fingers on numerous occasions at the Ruby Falls house. The
excerpts of A.M.D.’s prior statements which do not align with this account of events
merely add detail on the differing nature of defendant’s abuse of A.M.D.
In State v. Ramey, our Supreme Court found that a victim’s prior statements
were sufficiently similar to his trial testimony to be admitted for corroborative
purposes, even though they added more detail to the account of abuse given at trial.
318 N.C. at 470, 349 S.E.2d at 574. The victim testified that the defendant first
touched his penis when he was five years old and that defendant had done so more
than five times. Id. In one of his prior statements, the victim had given this same
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account of events, but added that the defendant would visit him at his home, buy him
ice cream, and tell him not to tell anyone what happened. Id. at 469, 349 S.E.2d at
574. In another prior statement, the victim gave a consistent account of events but
added that defendant had put both his mouth and hands on his penis. Id. at 470, 349
S.E.2d at 574. Our Supreme Court held that:
[The victim’s] testimony clearly indicated a course of
continuing sexual abuse by the defendant. The victim’s
prior oral and written statements . . ., although including
additional facts not referred to in his testimony, tended to
strengthen and add credibility to his trial testimony. They
were, therefore, admissible as corroborative evidence. The
jury could not be allowed to consider this evidence for any
other purpose, however, and whether it in fact corroborated
the victim’s testimony was, of course, a jury question.
Id. (internal citations omitted).
Similar to Ramey, here A.M.D.’s testimony clearly indicates a pattern of
continuing abuse by defendant while her family lived at the Ruby Falls house,
consisting of defendant’s penetration of A.M.D.’s genitals with his fingers. A.M.D.’s
prior statements offered by Ms. Hester substantially conform with A.M.D.’s
testimony at trial, save for the addition of other forms of abuse. These statements
were sufficiently similar to A.M.D.’s testimony for the trial court to allow the jury to
decide their corroborative value for itself, after receiving a limiting instruction to that
effect. Therefore, the trial court did not abuse its discretion.
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Assuming arguendo that the trial court abused its discretion by admitting
A.M.D.’s prior statements to Ms. Hester, defendant was not prejudiced thereby. The
jury heard two other witnesses give accounts of A.M.D.’s prior statements that
conformed with her testimony of abuse given at trial, without providing additional
details. Furthermore, one of these witnesses was a disinterested medical
professional. See State v. Smith, 315 N.C. 76, 99, 337 S.E.2d 833, 848 (1985) (finding
corroborative testimony of disinterested rape task force volunteer likely to have
greater influence on jury). Defendant has not shown that, without A.M.D.’s prior
statements recounted by Ms. Hester, there is a reasonable possibility that the jury
would have found A.M.D.’s trial testimony to lack credibility.
The State’s brief attempts to further distinguish Stills from the instant case by
stating that the trial court in Stills gave the jury no limiting instruction when it
admitted allegedly corroborative, impermissible hearsay over objection. In Stills, our
Supreme Court did find impermissible some allegedly corroborative statements to
which the defendant did not object and the trial court provided no limiting
instruction. 310 N.C. at 415, 312 S.E.2d at 446. Our Supreme Court was somewhat
ambiguous in identifying the prior statements with which it took issue. However, a
careful reading of the case reveals that the Court also found impermissible one
allegedly corroborative statement to which the defendant did object, and the trial
court provided an adequate limiting instruction. Id. at 413, 312 S.E.2d at 445-46.
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B. Testimony of Extradition and Instruction on Evidence of Flight
Defendant further argues that the trial court plainly erred by: (1) allowing
Detective Ellis to testify regarding defendant’s extradition back to North Carolina
after his arrest in Puerto Rico, and (2) instructing the jury that this could be
considered evidence of flight. Defendant concedes that he failed to preserve these
issues at trial, and thus our review is limited to plain error.
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice—that, after examination of the entire
record, the error had a probable impact on the jury’s
finding that the defendant was guilty. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (alteration in
original) (internal quotation marks and citations omitted).
1. Testimony of Extradition
Defendant argues that the trial court plainly erred in allowing Detective Ellis
to testify regarding defendant’s apprehension and extradition from Puerto Rico.
Defendant contends that Detective Ellis only learned of his extradition from
conversations with the Marshals and the extradition paperwork, and therefore lacked
personal knowledge to testify to this matter as required by N.C. Gen. Stat. § 8C-1,
Rule 602 (2019). We disagree.
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An evidentiary foundation for personal knowledge “may, but need not, consist
of the testimony of the witness himself.” Id. We agree with the State’s position that
“Detective Ellis’s initiation of the involvement of the U.S. Marshals Service and direct
oversight of the case as lead detective demonstrate personal knowledge sufficient to
satisfy the requirements of . . . Rule 602. Detective Ellis had personal knowledge
regarding the inability to locate [d]efendant after visiting all of his known residences
since his release from prison in Georgia in 2008. Detective Ellis initiated the
conversation with U.S. Marshals regarding assistance [in] locating [d]efendant.” This
constitutes sufficient personal knowledge to testify concerning defendant’s
extradition under Rule 602.
Assuming arguendo that the trial court erred in allowing this testimony, any
such error did not have a probable impact on the jury’s verdict. The jury also heard
testimony that defendant subsequently escaped from the Clay County Detention
Center and was found hiding in the attic of a nearby home. Thus, even without the
challenged testimony, the jury heard evidence that defendant attempted to flee before
he could be prosecuted for the alleged offenses. Defendant has thus failed to prove
that the jury probably would have reached a different verdict without Detective Ellis’s
testimony on his extradition.
2. Jury Instruction on Flight
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Defendant argues that the trial court plainly erred by instructing the jury that
his arrest and extradition from Puerto Rico could be considered evidence of flight
indicative of guilt. Defendant maintains that the State did not produce evidence that
he went to Puerto Rico to avoid apprehension for his crimes. We disagree.
“A trial judge is not required to instruct a jury on defendant’s flight unless
there is some evidence in the record reasonably supporting the theory that defendant
fled after commission of the crime charged. Mere evidence that defendant left the
scene of the crime is not enough to support an instruction on flight. There must also
be some evidence that defendant took steps to avoid apprehension.” State v.
Thompson, 328 N.C. 477, 489-90, 402 S.E.2d 386, 392 (1991) (internal quotation
marks and citations omitted).
Evidence that a defendant departed from his usual routine by subsequently
leaving the area and staying in another town, county, or state may support an
instruction on flight. See State v. Allen, 346 N.C. 731, 740-41, 488 S.E.2d 188, 193
(1997) (holding no plain error where defendant “drove away from the scene of the
crime and was not apprehended until later that night in another county”); State v.
Shelly, 181 N.C. App. 196, 209, 638 S.E.2d 516, 526 (2007) (“Defendant left the scene
of the shooting and did not return home. Rather, he spent the night at the home of
his cousin’s girlfriend, an action that was not part of Defendant’s normal pattern of
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behavior and could be viewed as a step to avoid apprehension. Accordingly, the trial
court did not err in instructing the jury on flight.”).
Here, the jury heard testimony that defendant’s normal routine at the time he
learned of A.M.D.’s accusations involved residing in the basement of the Ruby Falls
home. Immediately after A.M.D. made her accusations in June of 2012, defendant
could be found at neither the Ruby Falls home nor any of his other prior known
addresses. Nearly six months later in November of 2012, defendant was found and
arrested in Puerto Rico. Defendant was nowhere to be found immediately after
A.M.D. accused him of sexual abuse, and was apprehended several months later in a
territory outside the continental United States. This evidence reasonably supports
the State’s theory that defendant fled to avoid apprehension for his crimes against
A.M.D. Thus, the trial court did not err in instructing the jury on flight.
C. Sentencing
Next, defendant argues that the trial court erred in sentencing him by
improperly calculating his prior record level and imposing lifetime SBM after the
expiration of his active term of imprisonment. We address each argument in turn.
1. Prior Record Calculation
Defendant contends that, in its calculation of his prior record level, the trial
court erroneously determined that one of his prior convictions in Georgia was
substantially similar to a Class B1 felony in North Carolina. We disagree.
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a. Standard of Review
By default, prior felony convictions from other jurisdictions are treated as
Class I felonies when calculating a defendant’s prior record level. N.C. Gen. Stat. §
15A-1340.14(e) (2019). However, the prior felony conviction can be treated as a
higher class of felony if the State proves by a preponderance of the evidence that it is
“substantially similar” to a North Carolina felony of that class. Id. When
determining substantial similarity, the trial court is tasked with “comparing the
elements of [the] out-of-state and North Carolina offenses.” State v. Sanders, 367
N.C. 716, 720, 766 S.E.2d 331, 334 (2014) (citations omitted). “[W]hether an out-of-
state offense is substantially similar to a North Carolina offense is a question of law”
that we review de novo. State v. Hanton, 175 N.C. App. 250, 254, 623 S.E.2d 600, 604
(2006). In so reviewing, we keep in mind that “the requirement set forth in N.C. Gen.
Stat. § 15A-1340.14(e) is not that the statutory wording precisely match, but rather
that the offense be ‘substantially similar.’ ” State v. Sapp, 190 N.C. App. 698, 713,
661 S.E.2d 304, 312 (2008).
b. Record Sufficient for Review
In the instant case, the State failed to meet its burden of proof. While a copy
of the Georgia statute under which defendant had been convicted was given to and
reviewed by the trial court in making its determination, it was never introduced into
evidence. Nonetheless, the State’s failure to meet its evidentiary burden is harmless
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where the record contains “sufficient information regarding an out-of-state conviction
for this Court to determine if it is substantially similar to a North Carolina offense[.]”
State v. Henderson, 201 N.C. App. 381, 388, 689 S.E.2d 462, 467 (2009).
As defendant concedes, such is the case here. The record evidence before the
court during sentencing contained defendant’s Georgia indictment and guilty plea.
The relevant counts in the indictment alleged that defendant committed child
molestation in violation of Ga. Code Ann. § 16-6-4 (2001) and statutory rape in
violation of Ga. Code Ann. § 16-6-3 (2001) between October 1999 and October 2000.
Moreover, the court’s prior record level worksheet indicates that only the statutory
rape offense was used to add nine points to the defendant’s prior record level. The
transcript reveals that the trial court and counsel for defendant and the State
discussed whether the Georgia statute was substantially similar to North Carolina’s
statutory provision outlawing sexual intercourse with persons under sixteen years of
age. Therefore, the record contains enough information for us to review the trial
court’s determination that the Georgia and North Carolina offenses were
substantially similar.
c. Substantial Similarity
The version of the Georgia statute in effect at the time of defendant’s prior
offense provides that “[a] person commits the offense of statutory rape when he or she
engages in sexual intercourse with any person under the age of 16 years and not his
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Opinion of the Court
or her spouse[.]” Ga. Code Ann. § 16-6-3(a). The court determined this offense was
substantially similar to N.C. Gen. Stat. § 14-27.25(a) (2015), which makes it a Class
B1 felony “if the defendant engages in vaginal intercourse with another person who
is 15 years of age or younger and the defendant is at least 12 years old and at least
six years older than the person, except when the defendant is lawfully married to the
person.” Such conduct constitutes only a Class C felony where the defendant is
between four and six years older than the victim. N.C. Gen. Stat. § 14-27.25(b).
1. Victim Age and Scope of Prohibited Conduct
Defendant maintains that the Georgia offense of statutory rape is not
“substantially similar” to N.C. Gen. Stat. § 14-27.25(a), because Ga. Code Ann. § 16-
6-3(a) “does not require any particular age difference between the two participants.
Unlike its North Carolina counterparts, the Georgia statute applies equally to all
[victims] under the age of 16 years, instead of drawing distinctions between victims
under the age of 13 and 13, 14 and 15 year-old victims.”
We find defendant’s attempt to distinguish the Georgia offense from that of
North Carolina based on distinctions between the ages of victims unpersuasive.
Defendant’s argument is based upon a prior version of our statutes that made sexual
intercourse with minors under age 13 and those 13 to 15 years old distinct offenses,
albeit both Class B1 felonies. See N.C. Gen. Stat. §§ 14-27.7A, 27.2(a) (2001). At the
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Opinion of the Court
time of defendant’s sentencing, these two offenses had been consolidated into a single
offense by N.C. Gen. Stat. § 14-27.25 (2015).
2. Age Requirements for Offenders
However, defendant correctly notes that the North Carolina and Georgia
statutes have differing age requirements for offenders. According to defendant, this
puts the offenses beyond the ambit of substantial similarity.
In State v. Bryant, we held that the South Carolina offense of criminal sexual
conduct with minors in the first degree, see S.C. Code Ann. § 16-3-655(1) (1996), was
not substantially similar to the North Carolina offenses of statutory rape of a child
by an adult and statutory sexual offense with a child by an adult, see N.C. Gen. Stat.
§§ 14-27.23, 27.28 (2015). 255 N.C. App. 93, 100, 804 S.E.2d 563, 567-68 (2017). In
reaching this conclusion, we reasoned that:
these offenses are not substantially similar due to their
disparate age requirements. Although both of the North
Carolina statutes require that the offender be at least 18
years of age, a person of any age may violate South
Carolina’s statute. Moreover, North Carolina’s statutes
apply to victims under the age of 13 years, while South
Carolina’s statute protects victims who are less than eleven
years of age. The North Carolina and South Carolina
statutes thus apply to different offenders and different
victims. Therefore, the offenses are not substantially
similar.
Id. at 100, 804 S.E.2d at 568 (internal quotations marks, citations, and alterations
omitted).
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Opinion of the Court
In the instant case, the relevant offenses of North Carolina and Georgia have
disparate requirements concerning the difference in age between the victim and
offender. The North Carolina statute can only be violated by the older of two
participants in sexual intercourse, where at least one is below the age of consent. See
N.C. Gen. Stat. § 14-27.25(a) (stating that a person has committed the Class B1 felony
offense only if he “is at least six years older” than a person under 16 years old with
whom he engages in vaginal intercourse). The Georgia statute can be violated by
both the younger and older parties to sexual intercourse, where both are under the
age of 16 and older than 13. See Ga. Code Ann. § 16-3-1 (2001) (setting 13 years as
age of criminal responsibility).
Depending on the age of the offender and victim, conduct prohibited by the
Georgia statute does not necessarily constitute the Class B1 felony offense in North
Carolina. Cf. Sapp, 190 N.C. App. at 713, 661 S.E.2d at 312 (holding inverse
proposition to suffice for finding of substantial similarity). There are several
hypothetical combinations of victim and offender ages for which the same underlying
action violates Ga. Code Ann. § 16-6-3 but does not constitute an offense, or only
qualifies as a Class C felony, under N.C. Gen. Stat. § 14-27.25. For example, an
offender engaging in sexual intercourse with a 13-year-old victim has committed the
Georgia offense whether he is 13 or 19 years old, whereas the offender would not have
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Opinion of the Court
committed the Class B1 felony offense in North Carolina if he was any younger than
19 years old.
Nevertheless, we hold that Bryant does not compel a similar result in the
instant case for several reasons. As an initial matter, an analysis of our precedent in
applying N.C. Gen. Stat. § 15A-1340.14(e) reveals that Bryant represents an outlier
in our case law on substantial similarity. Most cases in which our courts have found
no substantial similarity between two offenses involved situations where one offense
contained an additional, more distinct element than merely a differing age
requirement. See, e.g., Sanders, 367 N.C. at 719-21, 766 S.E.2d at 333-34 (holding
North Carolina offense of “assault on a female” not substantially similar to Tennessee
offense of “domestic assault” because the latter “does not require the victim to be
female or the assailant to be male and of a certain age” and, unlike the former, could
only occur inside the home); State v. Foxworth, No. COA14-693, 2015 WL 660792, at
*3 (N.C. Ct. App. Feb. 17, 2015) (holding two attempted murder statutes not
substantially similar where North Carolina offense required additional mens rea
element of premeditation); State v. Hogan, 234 N.C. App. 218, 230, 758 S.E.2d 465,
474 (2014) (holding New Jersey offense of third-degree theft not substantially similar
to North Carolina offense of misdemeanor larceny because “[t]here are many
elements of third degree theft not found in misdemeanor larceny” and “[s]everal of
these possible elements, such as theft from a person, would also make the larceny a
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Opinion of the Court
felony in North Carolina”); Hanton, 175 N.C. App. at 258-59, 623 S.E.2d at 606-607(holding New York offense of second-degree assault not substantially similar to North
Carolina offense of assault inflicting serious injury, due to lack of serious physical
injury requirement).
Furthermore, we have overlooked differing statutory requirements far greater
than age requirements in finding substantial similarity between two offenses. See,
e.g., State v. Johnson, No. COA16-1170, 2017 WL 2437001, at *3 (N.C. Ct. App.
June 6, 2017) (holding North Carolina and Tennessee offenses of resisting arrest
substantially similar despite Tennessee’s additional requirement of “force,”
indicating it “is more serious than the same offense in North Carolina[.]”); State v.
Fortney, 201 N.C. App. 662, 671, 687 S.E.2d 518, 525 (2010) (holding Virginia and
North Carolina offenses prohibiting convicted felons’ involvement with firearms
substantially similar, despite Virginia statute only prohibiting knowing and
intentional possession or transport and North Carolina statute’s more extensive
prohibition on purchase, ownership, possession, or having a firearm in custody, care,
or control).
Having noted the aberrant nature of our holding in Bryant, we now turn to our
chief consideration in holding the offenses substantially similar: “There may be . . .
hypothetical scenarios which highlight the more nuanced differences between the two
offenses. But the subtle distinctions do not override the almost inescapable
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Opinion of the Court
conclusion that both offenses criminalize essentially the same conduct . . . .” State v.
Riley, 253 N.C. App. 819, 827, 802 S.E.2d 494, 500 (2017).
We have previously found an out-of-state felony sexual offense against a minor
to be substantially similar to our own, despite semantic differences in the age
requirements for the offender and victim. See State v. Corey, No. COA17-1031, 2018
WL 2642772 (N.C. Ct. App. June 5, 2018), rev’d in part, vacated in part on other
grounds, 373 N.C. 225, 835 S.E.2d 830 (2019). In Corey, we held that two sexual
offense statutes prohibiting essentially the same conduct with slightly different age
requirements were substantially similar. Id. at *4. Michigan’s offense of fourth-
degree sexual misconduct required an offender at least 18 years old and five years
older than a 13-, 14-, or 15-year-old victim. Id. at *3-4. The statute prohibited
engaging in “sexual contact” between an offender and victim. Id. at *4 North
Carolina’s offense of taking indecent liberties with a child required that the offender
be at least 16 years old and five years older than a victim under 18 years old. Id.
(citing N.C. Gen. Stat. § 14-202.1 (2017)). The statute prohibited the taking of
“immoral, improper, or indecent liberties with the child . . . for the purpose of . . .
arousing sexual gratification.” Id.Despite the hypothetical scenarios in which an offender of a certain age would
violate the North Carolina statute and not the Michigan statute, we agreed with the
trial court that:
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Opinion of the Court
[T]he statutes at issue are substantially similar because
the elements of the statutes target assailants that engage in
similar conduct with similar victims, i.e., assailants who
engage in sexual conduct with children for the purpose of
sexual arousal. All child victims who meet the age
requirement for the Michigan offense of fourth-degree
sexual conduct . . . would meet the age requirement and
could be classified as victims under N.C. Gen Stat. § 14-
202.1 (2017). Moreover, the Michigan statute and case law
further defining the offense seeks to prevent actions by
defendants against children which lead to or arouse sexual
gratification. The same is true of our indecent liberties
with a child statute. We therefore conclude that the
offenses are substantially similar . . . .
Id. (emphasis added).
Although unpublished, we find our reasoning in Corey persuasive in the
instant case. Both the North Carolina and Georgia statutes seek to protect persons
under the age of 16 from engaging in sexual activity with older individuals. Any
victim meeting the age requirement of the Georgia offense would meet the age
requirement and could be classified as a victim under N.C. Gen. Stat. § 14-27.25.
Moreover, both statutes opt to levy greater punishment on older offenders with
greater age discrepancies from their victims. Although it does so in a manner
structurally different from our own, the Georgia statute stratifies the severity of
punishment based on the age discrepancy between the offender and the victim.
Offenders under 21 years old face a minimum punishment of imprisonment for one
year, whereas offenders 21 years of age and older face a minimum punishment of
imprisonment for ten years. Ga. Code Ann. § 16-6-3(b). The same conduct is only
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STATE V. GRAHAM
Opinion of the Court
punishable as a misdemeanor if the offender has an age difference of three years or
fewer from a 14- or 15-year-old victim. Id.Additionally, we note that defendant’s indictment in the instant case reveals
he would have been 36 years old when he committed the conduct underlying his
Georgia conviction against a person under 16 years of age. Thus, defendant’s conduct
would constitute the Class B1 felony offense under N.C. Gen. Stat. § 14-27.25(a).
Although not dispositive, we find this fact weighs against the various hypothetical
technicalities defendant points to in arguing the offenses are dissimilar.
Both N.C. Gen. Stat. § 14-27.25 and Ga. Code Ann. § 16-6-3 seek to protect
persons under age sixteen from those who would engage in sexual intercourse with
them, and seek greater deterrence for offenders significantly older than their victims
by punishing them more severely. Therefore, we hold that the trial court did not err
in finding the two offenses substantially similar. The trial court properly treated
defendant’s prior conviction of the Georgia offense as a Class B1 felony for the
purposes of calculating his prior record level.
2. Lifetime Satellite-Based Monitoring
Finally, defendant argues that the trial court erred by entering an order
subjecting defendant to lifetime participation in the State’s SBM program. Accepting
arguendo the State’s contention that defendant has failed to preserve this issue on
appeal, we invoke N.C.R. App. P. 2 (2020) to assess the merits of defendant’s
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Opinion of the Court
argument, which we find controlling. See State v. Bursell, 372 N.C. 196, 200-201, 827
S.E.2d 302, 305-306 (2019) (holding this Court erred in finding that defendant
preserved constitutional challenge to lifetime SBM order, but permissively invoked
Rule 2 in alternative to address issue).
a. Error
An order requiring a defendant to participate in the State’s lifetime SBM
program per N.C. Gen. Stat. § 14-208.40A(c) (2019) effects a search triggering the
Fourth Amendment’s protection from unreasonable searches and seizures. Grady v.
North Carolina, 575 U.S. at 308-309, 191 L. Ed. 2d at 461. This is a substantial right
that warrants our discretionary invocation of Rule 2. Bursell, 372 N.C. at 200-201,
827 S.E.2d at 305-306.
We first note that defendant does not fall within the category of persons for
whom our Supreme Court has ruled mandatory enrollment in the SBM program
facially unconstitutional. See State v. Grady, 372 N.C. 509, 522, 831 S.E.2d 542, 553
(2019) (limiting holding that program was facially unconstitutional as to “individuals
who are subject to mandatory lifetime SBM based solely on their status as a
statutorily defined ‘recidivist’ who have completed their prison sentences and are no
longer supervised by the State through probation, parole, or post-release
supervision”) (footnote omitted). While defendant does qualify as a recidivist, the
trial court’s SBM order also makes findings that defendant’s convicted offense was
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STATE V. GRAHAM
Opinion of the Court
sexually violent, committed against a child, involved the physical, mental, or sexual
abuse of a minor, and qualified as an aggravated offense under N.C. Gen. Stat. § 14-
208.6(1a) (2019). See N.C. Gen. Stat. § 14-208.40A (2019) (listing these factors as
warranting entry of order enrolling defendant in lifetime SBM program).
Before a trial court may order a defendant to participate in the SBM program
for life, the State must prove that the SBM program is reasonable as applied to the
defendant, considering the totality of the circumstances, the nature and extent to
which it intrudes upon the defendant’s reasonable privacy interests, and the extent
to which it furthers legitimate governmental interests. State v. Blue, 246 N.C. App.
259, 264-65, 783 S.E.2d 524, 527 (2016) (clarifying burden of proof at Grady hearing
lies with State) (citing Grady, 575 U.S. at 310, 191 L. Ed. 2d at 462).
The State concedes that the trial court had insufficient evidence before it to
support the SBM order. In particular, the State notes that it presented no evidence
on the burdens the program imposes upon participants or any data on the extent to
which the program advances legitimate government interests. Rather, after taking
notice of the facts and evidence adduced at trial, the trial court ignored the State’s
offer to proceed introducing evidence in a Grady hearing and summarily gave its
reasons for finding lifetime enrollment in the SBM program reasonable. See Blue,
246 N.C. App. at 264-65, 783 S.E.2d at 527 (finding error where “the trial court simply
acknowledged that SBM constitutes a search and summarily concluded it is
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Opinion of the Court
reasonable, stating that ‘[b]ased upon [the second-degree rape] conviction, and upon
the file as a whole, lifetime satellite-based monitoring is reasonable and necessary
and required by the statute.’ ”) (alterations in original). We agree with defendant and
the State. The trial court thus erred by ordering that defendant participate in the
SBM program for life.
b. Remedy
Having found for defendant on the issue of error under Grady and its progeny,
we must now determine the proper remedy.
We disagree with defendant’s contention that reversal of the SBM order
without remand is appropriate. This would be the proper remedy if the trial court
had held a Grady hearing, and the State had simply failed to introduce enough
evidence to meet its burden. See, e.g., State v. White, No. COA 18-39, 2018 WL
4200979, at *8 (N.C. Ct. App. Sept. 4, 2018) (“[B]ecause the State presented
insufficient evidence to meet its burden, the State is not entitled to a new SBM
hearing for the purpose of giving it a ‘second bite at the apple.’ ”) (citation omitted),
remanded, 372 N.C. 726, 2019 N.C. LEXIS 1175 (2019); State v. Dravis, No. COA18-
76, 2018 WL 4201041, at *4 (N.C. Ct. App. Sept. 4, 2018), remanded, 372 N.C. 721,
2019 N.C. LEXIS 1173 (2019); State v. Greene, 255 N.C. App. 780, 783-84, 806 S.E.2d
343, 345 (2017).
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Opinion of the Court
Here, the trial court entered a conclusory finding of reasonableness and did not
afford the State an opportunity to satisfy its evidentiary burden, despite the State’s
repeated offers to proceed with a Grady hearing and introduce further evidence.
Thus, the State has not yet had its “first bite of the apple,” and vacatur of the SBM
order with remand for an evidentiary hearing consistent with the most recent
guidance from our Supreme Court in State v. Grady, 372 N.C. 509, 831 S.E.2d 542, is
appropriate. State v. White, __ N.C. App. __, __, 820 S.E.2d 116, 122-23 (2018).
D. Order Denying Motion for Appropriate Relief
Defendant argues that the trial court abused its discretion in its order denying
his MAR requesting a new trial. Specifically, defendant contends that the order’s
findings of fact, taken as a whole, are insufficient to support the trial court’s legal
conclusions. We agree, and vacate and remand with instructions to enter an order
containing sufficient findings of fact to address the issues raised by the motion and
which the trial court believes to support its conclusion of law.
1. Standard of Review
“When considering rulings on motions for appropriate relief, we review the
trial court’s order to determine whether the findings of fact are supported by evidence,
whether the findings of fact support the conclusions of law, and whether the
conclusions of law support the order entered by the trial court.” Frogge, 359 N.C. at
240, 607 S.E.2d at 634 (internal quotation marks and citation omitted). The trial
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STATE V. GRAHAM
Opinion of the Court
court’s findings of fact are binding on appeal if supported by competent evidence, and
conclusions of law are reviewed de novo. State v. Lutz, 177 N.C. App. 140, 142, 628
S.E.2d 34, 35 (2006) (citation omitted).
Pursuant to a motion for appropriate relief,
A defendant may be allowed a new trial on the basis of
recanted testimony if:
1) the court is reasonably well satisfied that the
testimony given by a material witness is false,
and
2) there is a reasonable possibility that, had the
false testimony not been admitted, a different
result would have been reached at the trial.
Britt, 320 N.C. at 715, 360 S.E.2d at 665. The defendant “has the burden of proving
by a preponderance of the evidence every fact essential to support the motion.” N.C.
Gen. Stat. § 15A-1420(c)(5) (2019).
2. Application
Defendant challenges several findings of fact, arguing that they merely recite
testimony and do not make necessary credibility determinations between conflicting
testimony. We agree. Taken as a whole, the order’s findings of fact do not resolve
factual issues necessary to reach the trial court’s conclusion of law.
Finding of fact 3 is, by itself, fatal to the order. This finding recites A.M.D.’s
hearing testimony that she lied at trial due to threats and bribes from Lora D. and
Holly D.’s trial testimony that A.M.D. made similar statements to her. Defendant
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STATE V. GRAHAM
Opinion of the Court
argues that this finding is deficient because it merely recites testimony without
resolving any of the factual issues raised by this evidence: namely, whether the court
believed it to be true. See In re Green, 67 N.C. App. 501, 505 n.1, 313 S.E.2d 193, 195
n.1 (1984) (“[V]erbatim recitations of the testimony . . . do not constitute findings of
fact by the trial judge, because they do not reflect a conscious choice between the
conflicting versions of the incident in question which emerged from all the evidence
presented.”) (emphasis in original). We agree.
A trial court must make sufficient findings of fact and
conclusions of law to allow the reviewing court to
determine whether a judgment, and the legal conclusions
that underlie it, represent a correct application of the law.
Recitation of testimony is insufficient only where a
material conflict actually exists on that particular issue,
and does not resolve the conflicts in the evidence and
actually find facts. A material conflict in the evidence
exists when evidence presented by one party controverts
evidence presented by an opposing party such that the
outcome of the matter to be decided is likely to be affected.
State v. Cody, No. COA18-503, 2018 WL 6318427, at *8 (N.C. Ct. App. Dec. 4, 2018)
(alterations, internal quotation marks, and citations omitted), disc. rev. dismissed,
cert. denied, 372 N.C. 100, 824 S.E.2d 417 (2019).
The testimony at the trial and hearing clearly present a material conflict in
the evidence. A.M.D. testified at trial that defendant sexually abused her. Holly D.
testified at trial that A.M.D. told her she was lying due to threats and bribes from
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STATE V. GRAHAM
Opinion of the Court
Lora D. A.M.D. testified at the hearing that defendant did not sexually abuse her,
and that she lied at trial due to Lora D.’s threats and bribes.
A determinative finding on whether A.M.D. had indeed lied in her trial
testimony due to bribes and threats from Lora D. would cut to the core of the first
prong of the Britt test. An affirmative finding on this issue would have compelled the
court to find that it was reasonably satisfied that the testimony of a material witness
was false. Moreover, the primary evidence against defendant consisted of A.M.D.’s
testimony and the testimony of other witnesses recalling what she said to them on
prior occasions. Thus, without A.M.D.’s trial testimony, the second prong of Britt
would likely be satisfied because there is a strong possibility that defendant could not
otherwise have been convicted. “[T]he outcome of the matter to be decided is likely
to be affected” by the court’s resolution of this conflict in the evidence, State v. Baker,
208 N.C. App. 376, 384, 702 S.E.2d 825, 831 (2010), therefore the trial court abused
its discretion by failing to expressly find which version of events it believed to be true.
The dissent would find the trial court’s order adequate under Britt, based on
the court’s findings noting its suspicion regarding the context in which A.M.D.’s
recantation arose. The dissent does not explain how such findings can suffice to
support the trial court’s Britt conclusion without running afoul of our mandate to
make findings resolving material conflicts in the evidence: in the present
circumstances where “evidence presented by one party controverts evidence
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STATE V. GRAHAM
Opinion of the Court
presented by an opposing party such that the outcome of the matter to be decided is
likely to be affected[,]” the trial court must make an ultimate determination
regarding which version of events raised by the evidence it believes to be true. Id.The trial court’s findings noting the suspect context in which A.M.D.’s recantation
arose, however well-grounded they may be, are no substitute for a finding that
directly resolves whether A.M.D. was indeed bribed and threatened to give false
testimony at trial. This principle is far from an expansion of our Supreme Court’s
mandate in Britt. Rather, it arises from our general precedent addressing the
sufficiency of findings of fact in any order, whether in the MAR context or otherwise.
Furthermore, the trial court’s remaining findings of fact, viewed as a whole, do
not adequately address other evidentiary issues raised at the MAR hearing. Findings
of fact 1, 2, and 4 all contain recitations of A.M.D.’s testimony at the hearing, without
expressly determining the veracity of this testimony. The court assesses the
credibility of this testimony indirectly in conclusion of law 4, where it makes a finding
that it “is convinced that the child was feeling some form of pressure to make these
statements[,]” without “speculat[ing] as to whether this was self-induced or from an
external source.” “Internal pressure” is vague and could equally refer to either
A.M.D.’s guilty conscience for falsely testifying at trial, or a desire to make her mother
happy after observing her mother’s romantic relationship with her incarcerated
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Opinion of the Court
abuser. The court must make some finding that sets forth its determination, rather
than providing a vague reference as detailed above.
A court hearing an MAR must make findings in its order that are unambiguous
and assess the credibility of the evidence on key issues presented by the motion. The
court failed to do this in the instant case, and therefore abused its discretion in its
order denying defendant’s MAR. We therefore vacate the court’s order denying
defendant’s motion and remand with instructions for the court to issue a new order2
containing findings that resolve the factual issues presented by defendant’s motion,
the supporting affidavit, and the testimony at the hearing.
III. Conclusion
For the foregoing reasons, we find no error in the evidentiary phase of
defendant’s trial, and vacate the trial court’s orders enrolling defendant in the SBM
program and denying defendant’s MAR. We remand for entry of a new MAR order
consistent with this opinion. If the court’s new MAR order does not necessitate a new
trial, we direct the court to conduct an evidentiary hearing on the reasonableness of
subjecting defendant to the SBM program upon his release.
NO ERROR IN PART; VACATED IN PART AND REMANDED.
Chief Judge MCGEE concurs.
Judge BRYANT concurs in part and dissents in part in separate opinion.
2 We request the court to exercise a degree of expediency not seen in its first treatment of
defendant’s motion in making these determinations.
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No. COA17-1362 – State v. Graham
BRYANT, Judge, concurring in part, dissenting in part.
I fully concur in the majority opinion as it relates to the jury trial and the order
on satellite-based monitoring. However, I disagree with the majority’s opinion that
the lower court abused its discretion by making findings of fact insufficient to support
its conclusions of law and denying defendant’s motion for appropriate relief
(hereinafter “MAR”). Therefore, I respectfully dissent.
Following the evidentiary hearing on defendant’s MAR, the lower court
entered an order which contained the following:
FINDINGS OF FACT
1. On December 5, 2016, a Jury of Clay County found
the defendant Guilty of Statutory Sex Offense with a Child.
At the trial of the matter [A.M.D.] testified as to various
facts and occurrences during a relevant time frame during
the year 2012. At the trial, she testified as to basic facts
including details of the touching and acts of the defendant
which could have constituted the offense. During this
hearing on May 1, 2019, [A.M.D.] testified to many more
details of the events, including the name of the movie being
watched during the “couch” incident (Bobby and the
Nutcracker); the book the defendant was reading her
during the “bedroom” incident (The Opossum came a
Knocking); the video game being played (Halo) during on
the basement incidents.
2. During the trial [A.M.D.] testified Roger (the
defendant) was play asleep and when she tried to wake him
up he pulled his privates out and when she went running
upstairs to tell her mom that her mom giggled. During this
hearing [A.M.D.] testified she went down and Roger was
asleep and he wasn’t getting up and [A.M.D.] went and told
mom he wasn’t waking up but not about privates and she
did not remember going to bathroom [sic] to hide or being
STATE V. GRAHAM
Bryant, J., concurring in part, dissenting in part
scared. She testified the defendant didn’t show his privates
then or any other time. As to the other possible time frames
of occurrences which were testified to at the trial, in this
hearing [A.M.D.] denied any and all touching. She gave
further details as to the names of the movie, book and video
game but denials of any touching.
3. When asked why [A.M.D.] lied during the trial she
stated she was afraid of her step mother (Lora) as Lora had
stated she would hurt or kill [A.M.D.]’s mom. Further the
Step mother would get her things she wanted like a horse
or get her toys if she testified and said these things. Also
[A.M.D.] stated she didn’t like liars and hated the lying
during the trial. At the trial in December 2016, Holly
Dempsey testified to something similar in relating a
comment made to her by [A.M.D.] wherein she stated Lora
said if she didn’t say this she would kill her mom.
4. Defendant’s Exhibit 1 is a letter tha[t] [A.M.D.] says
she wrote and left for her mother on her desk in January
2018 while [A.M.D.] was living with her dad. [A.M.D.]
decided to write the letter because she knows her mom was
“torn up” over the truth and not knowing the facts and
[A.M.D.] wanted her to be happy again. Also, [A.M.D.]
made comments about that’s what love is about. This is the
letter which led to the affidavit of [A.M.D.]. Upon
questioning by both the State and the Defense counsel
[A.M.D.] and her mother, Cassie, stated this letter was
written and left in January 2018. Further they both stated
it was not discussed between them until March 2018.
However when telephone calls were played by the State
which were recorded between the defendant and Cassie
reference is made to [A.M.D.] being willing to testify in court
and getting an affidavit to send to the lawyer on December
6, 2017. Moreover, the defendant discusses whether
[A.M.D.] is willing to testify in court about what she told
Cassie. He tells Cassie to tell him about what [A.M.D.] said
and to get an affidavit to send to the lawyer to help the
appeals case. He asks when [A.M.D.] is going to be with
Cassie and away from Lora and the dad. On December 19,
2
STATE V. GRAHAM
Bryant, J., concurring in part, dissenting in part
2017 during another phone call between the defendant and
Cassie, the defendant discussed getting [A.M.D.] in touch
with a PI to get a statement from her, specifically Teresa
Dean, and asks Cassie to look the number up. On January
12, 2018 during a phone call the defendant asks Cassie who
else she had told of what [A.M.D.] said.
5. During a phone call on May 7, 2019 [sic] the
defendant is told by Cassie that Teresa Dean had been to
talk to [A.M.D.]. The Defendant asks what was said and
wanted Cassie to ask questions so she could tell him what
was said during the interview.
6. During a phone call on May 31, 2018 a voice the
Court took to be [A.M.D.] called the defendant Dad to
which he responds “aww” when Cassie says [A.M.D.] calls
him that. This was overheard on the phone call when there
was [sic] several voices clamoring to speak to the defendant
on the phone among them Levi (the defendant’s son with
Cassie) Cassie and [A.M.D.]. There is then a discussion as
to how long going to be until get [A.M.D.] gets into court.
[sic]
7. During a phone call on June 1, 2018 the defendant
and Cassie discuss the MAR. The defendant explains
where the testimony from [A.M.D.] comes in and how the
MAR is the best chance because then the defendant can
talk about the lawyer not doing stuff and [A.M.D.]
recanting her testimony.
8. The Affidavit (Defense Exhibit 2) was notarized at a
bank in Georgia. During the first testimony of [A.M.D.] at
this hearing she stated she signed it and the next day the
lady put the stamp on it. The stamp being the notary seal.
Cassie testified [A.M.D.] made some corrections to the
affidavit and then they went to the bank and someone
notarized it at the bank and then faxed it to the lawyer.
When [A.M.D.] testified again two days later, she
“remembered” she had signed the affidavit in front of the
3
STATE V. GRAHAM
Bryant, J., concurring in part, dissenting in part
lady and had shown her an ID, one from her school with
her picture on it.
CONCLUSIONS OF LAW
....
3. The Court utilizing the standard as set out in State
v. Britt, 320 N.C. 705, 360 S.E.2d 660 (1987); is charged
with deciding the conditions. The first being if the Court is
reasonably well satisfied that the testimony given by a
material witness if false [sic] and the second being if there
is a reasonable possibility that, had the false testimony not
been admitted, a different result would have been reached
at trial.
4. The Court is not satisfied that the testimony given by
[A.M.D.] at the trial on this matter in December 2016 was
false. The Court concludes that the child gave surprisingly
more details at this hearing than at the trial, some five to
six years after the offenses. The trial was closer in time to
the events and it is suspicious that more details would be
recalled as time elapses. The Court heard the additional
details the child gave during the affidavit and its signature
during the course of this hearing between the two days of
testimony and after witnessing the testimony of the
mother. The Court is unconvinced this is accurate
testimony. Further the details of the “recantation” and its
use by the defendant as additional help for his appeal was
discussed repeatedly between the defendant and the
mother prior to the alleged time the letter (defendant’s
exhibit 1) was “left” by the child. The Court is convinced
that the child was feeling some form of pressure to make
these statements. The Court is not going to speculate as to
whether this was self-induced or from an external source.
5. The Court not finding false testimony at the trial
would find a different result would not have been possible.
(emphasis added).
4
STATE V. GRAHAM
Bryant, J., concurring in part, dissenting in part
Our standard of review as to rulings on MARs is to determine whether the trial
court’s findings of fact are supported by the evidence, whether the findings of fact
support the conclusions of law, and whether the conclusions of law support the order.
See State v. Frogge, 359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005). This was
acknowledged by the majority along with the well-known principle that “the trial
court’s findings of fact are binding on appeal if supported and the conclusions of law
are reviewed de novo. State v. Lutz, 177 N.C. App. 140, 142, 628 S.E.2d 34, 35 (2006)
(citation omitted).” It is also a well-known principle that “[w]here trial is by judge
and not by jury, the trial court’s findings of fact have the force and effect of a verdict
by a jury and are conclusive on appeal if there is evidence to support them, even
though the evidence might sustain findings to the contrary.” In re Estate of Trogdon,
330 N.C. 143, 147, 409 S.E.2d 897, 900 (1991) (citations omitted).
As noted by the majority, defendant has the burden of proof on an MAR.
Defendant may be allowed a new trial on the basis of recanted testimony if:
1) the court is reasonably well satisfied that the testimony
given by a material witness is false, and
2) there is a reasonable possibility that, had the false
testimony not been admitted, a different result would
have been reached at the trial.
State v. Britt, 320 N.C. 705, 715, 360 S.E.2d 660, 665 (1987).
Here, the lower court made a credibility determination based on testimony
presented during the December 2016 trial and testimony presented during the May
5
STATE V. GRAHAM
Bryant, J., concurring in part, dissenting in part
2019 MAR hearing. The court determined that it “[was] not satisfied that the
testimony given by [A.M.D.] at the trial on this matter in December 2016 was false.”
Further, the court concluded it was “unconvinced” the testimony at the MAR hearing
was accurate.
The evidence presented during defendant’s December 2016 trial showed that
four years after she was abused at the age of eight, then twelve-year-old A.M.D.
testified to acts of sexual abuse for which defendant was convicted. In May 2019, the
hearing on defendant’s MAR was conducted. Per the MAR court’s finding of fact 1,
the court noted the extent to which A.M.D. provided details at defendant’s trial in
2016 versus the extent to which she provided details in 2019, regarding the
circumstances surrounding a sex offense which did not occur. During defendant’s
2016 trial, A.M.D. testified to basic facts which could have constituted a statutory sex
offense with a child, while during the 2019 MAR hearing A.M.D. testified to the name
of the movie that was playing during the “couch” incident, the book defendant was
reading during the “bedroom” incident, and the video game being played during the
“basement” incident, again testifying to facts surrounding incidents she later said did
not occur.
Per finding of fact 2, A.M.D. recanted the testimony she gave during the 2016
trial—when she testified that defendant had “pulled his privates out” as she tried to
wake him—and at the MAR hearing, she denied “any and all touching” by defendant.
6
STATE V. GRAHAM
Bryant, J., concurring in part, dissenting in part
In finding of fact 8, the court noted discrepancies in A.M.D.’s testimony, as well as
that of her mother, Cassie, regarding how and when the affidavit A.M.D. signed in
support of defendant’s MAR was notarized. A.M.D. testified that the impetus for
recanting her testimony, a letter she wrote to her mother—Defendant’s Exhibit 1—
was written and left for her mother in January 2018. A.M.D. knew “her mom was
‘torn up’ over the truth and not knowing the facts and [A.M.D.] wanted her [mother]
to be happy again.” Moreover, A.M.D. testified that she and her mother did not
discuss the contents of the letter until March 2018. However, the MAR court found
that defendant and A.M.D.’s mother, Cassie, were recorded on 6 December 2017,
discussing with defendant A.M.D.’s willingness to testify in court and getting an
affidavit to send to a lawyer. “[D]efendant discusse[d] whether [A.M.D.] [wa]s willing
to testify in court about what she told Cassie. He t[old] Cassie to tell him about what
[A.M.D.] said and to get an affidavit to send to the lawyer to help with the appeals
case.” On 19 December 2017, defendant and Cassie were recorded discussing getting
A.M.D. in touch with a PI in order to get a statement. Again, there were clear
discrepancies in the testimony of AMD and Cassie as to how, when, and perhaps
where the affidavit of recantation was obtained.
In the court order denying defendant’s MAR, the court acknowledged the test
to grant defendant a new trial on the basis of recanted testimony as set forth in Britt,
7
STATE V. GRAHAM
Bryant, J., concurring in part, dissenting in part
320 N.C. 705, 360 S.E.2d 660. Therefore, it is clear the MAR court was aware the
Britt test determined whether defendant’s MAR could be granted.
The majority reverses the lower court order solely on the basis that the MAR
court did not specifically state whether it found A.M.D.’s 2019 MAR hearing
testimony that she was threatened and bribed to submit false testimony during
defendant’s 2016 trial to be true or false. The majority states that finding of fact 3 is,
by itself, fatal to the order because the “finding recites A.M.D.’s hearing testimony
that she lied at trial due to threats and bribes from Lora D.” The majority accepts
defendant’s argument that the MAR court did not resolve the factual issue raised by
that evidence. On the other hand, the majority does not accept that the MAR court
did just what Britt requires as a first step: determine whether “the court is reasonably
well satisfied that the testimony given by a material witness is false[.]” Britt, 320
N.C. at 715, 360 S.E.2d at 665.
What the majority is interposing is an expansion of the Britt test: a court
hearing a MAR “must make findings in its order that are unambiguous and assess
the credibility of the evidence on key issues presented by the motion.” Here, during
the MAR hearing, the witness recanted the bare bones of her trial testimony. But
upon hearing the evidence, the lower court clearly had serious concerns regarding the
circumstances and sequence of events that gave rise to the recantation by the
witness—a minor child—as well as the pressure imposed (“either self-induced or from
8
STATE V. GRAHAM
Bryant, J., concurring in part, dissenting in part
an external source”) upon that recanting witness which may have affected her
veracity. As such, the court was “unconvinced” the recanting witness’s testimony
given during the 2019 MAR hearing was “accurate,” and therefore, in accordance with
Britt, the MAR court “[wa]s not satisfied that the testimony given by [A.M.D.] at trial
on this matter in December 2016 was false.”
The lower court’s order was sufficient to satisfy the Britt test and denying
defendant’s MAR was not an abuse of discretion. Defendant merely failed to meet
his burden of proof. It is not this Court’s responsibility to use a test created by
defendant that would require a lower court to make findings of fact on what defendant
considers the critical issue. And I urge the majority not to adopt such an
unsupportable position.
I will note that going forward, more specificity in the strength of a trial court’s
findings of fact and conclusions of law is always appreciated by our appellate courts.
However, I disagree that, because we do not have what defendant may consider a
more perfect order, the order we do have, which makes appropriate findings of fact
and conclusions of law pursuant to the Britt rule, should be vacated.
For these reasons, I would uphold the lower court’s order denying defendant’s
MAR.
9