State v. JohnsonÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-527
Filed: 2 May 2017
Watauga County, Nos. 14 CRS 001235, 050591, 051139
STATE OF NORTH CAROLINA
v.
ROBERT HAROLD JOHNSON
Appeal by defendant from judgments entered 3 December 2015 by Judge
Michael D. Duncan in Watauga County Superior Court. Heard in the Court of
Appeals 17 November 2016.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Anita
LeVeauz, for the State.
Glover & Petersen, P.A., by James R. Glover, for defendant-appellant.
TYSON, Judge.
Robert Harold Johnson, (“Defendant”) appeals from judgments entered upon
his convictions for first degree sex offense with a child and sex offense by a substitute
parent. We find no error in part, and reverse in part and remand to the trial court to
issue correct findings and orders regarding sex offender registration and satellite-
based monitoring (“SBM”) requirements.
I. Background
STATE V. JOHNSON
Opinion of the Court
Defendant was arrested and a Watauga County Grand Jury indicted
Defendant on three counts of sexual offense with a child, three counts of sexual
activity by a substitute parent, and three counts of taking indecent liberties with a
child. The charges were spread among three identical superseding indictments dated
5 January 2015, each of which contained one count of each offense.
Prior to jury selection, the State voluntarily dismissed the three counts of
indecent liberties with a child. The remaining charges for sexual offense with a child
and sexual activity by a substitute parent were joined for trial without objection.
Evidence presented by the State at trial tended to show Defendant forced his
wife’s ten-year-old son to perform fellatio on him, when Defendant was supposed to
be taking the juvenile to school and at other times inside and outside the juvenile’s
grandparents’ house, where Defendant and the juvenile lived.
On 3 December 2015, the jury returned verdicts finding Defendant guilty of all
six charges—three counts of sex offense with a child and three counts of sex activity
by a substitute parent. Based upon the verdicts, the trial court entered three
separate judgments corresponding to the indictments, with one count of each offense
included in each judgment. Defendant received three consecutive sentences of 300 to
420 months imprisonment. The court further ordered that upon Defendant’s release
from prison, Defendant shall register as a sex offender for life and enroll in SBM for
the remainder of his life. Defendant filed notice of appeal on 11 December 2015.
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STATE V. JOHNSON
Opinion of the Court
II. Jurisdiction
Jurisdiction lies in the Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2015) and
N.C. Gen. Stat. § 15A-1444(a) (2015).
III. Issues
On appeal, Defendant raises the following three issues: whether the trial court
erred by (1) allowing the jury to return guilty verdicts that were potentially less than
unanimous by failing to adequately detail the incident of sex offense alleged in a
particular indictment; (2) ordering lifetime sex offender registration based on a
finding that Defendant was convicted of an aggravated offense; and (3) ordering
lifetime SBM without a determination that the program was a reasonable search.
IV. Unanimous Verdicts
In order to clarify and better distinguish sexual offenses, many of the sexual
offense statutes were reorganized, renamed, and renumbered by the General
Assembly following this Court’s recommendation in State v. Hicks, 239 N.C. App. 396,
768 S.E.2d 373 (2015). See 2015 N.C. Sess. Laws 181 (effective 1 Dec. 2015). Those
changes became effective 1 December 2015, but apply only to the prosecution of
offenses committed after the effective date. See 2015 N.C. Sess. Laws. 181 sec. 48.
We reference the previous version of the statutes in effect at the time the offenses in
this case were committed.
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STATE V. JOHNSON
Opinion of the Court
The three superseding indictments in this case were identical, each charging
one count of sex offense with a child in violation of N.C. Gen. Stat. § 14-27.4A(a) and
one count of sexual activity by a substitute parent in violation of N.C. Gen. Stat. § 14-
27.7(a) within the same period of time and without details distinguishing between
the incidents. The evidence presented to the jury at trial included evidence of
multiple sexual interactions between Defendant and the juvenile.
During the charge conference, the court inquired of counsel how to differentiate
between the offenses in the charge to the jury. In response, the prosecutor suggested
that the offenses be differentiated based on where each offense was alleged to have
occurred— “inside Dovie Evans’ house,” “outside of Dovie Evans’s [sic] house,” and
“at the end of a dirt road near Dovie Evans’s [sic] house.” The defense objected to the
prosecutor’s suggestion contending the locations were “a little too broad and open-
ended.” Although the defense suggested more specific instructions, the defense
declined to offer specific suggestions.
After considering options to make the instructions more specific, the court
noted Defendant’s objection and decided it would differentiate between the offense
based on where the offenses were alleged to have occurred as follows: “inside Dovie
Evans’ house,” “outside Dovie Evans’ house, but on Dovie Evans’ property[,]” and “at
the end of a dirt road off Snyder Branch road near Dovie Evans’ house.” The jury was
then instructed on the sex offense with a child and sexual activity by a substitute
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STATE V. JOHNSON
Opinion of the Court
parent offenses with the offenses differentiated by where they were alleged to have
occurred, as decided during the charge conference. The defense did not object to the
instructions. The verdict sheets provided to the jury also differentiated between the
offenses by where each offense was alleged to have occurred. The defense also did
not object to the verdict sheets.
Defendant challenges the entry of judgements on convictions for the offenses
purportedly occurring “inside Dovie Evans’ house” and “outside Dovie Evans’ house
but on Dovie Evans’ property” in file numbers 14 CRS 1235 and 14 CRS 50591.
Defendant contends the trial court erred in failing to sufficiently identify the
incidents constituting the offenses and, therefore, deprived him of his right to
unanimous jury verdicts.
A. Standard of Review
“The North Carolina Constitution and North Carolina Statutes require a
unanimous jury verdict in a criminal jury trial.” State v. Lawrence, 360 N.C. 368, 373-
74, 627 S.E.2d 609, 612 (2006) (citing N.C. Const. art. 1, § 24; N.C. Gen. Stat. § 15A–
1237(b)). Although Defendant did not object to the instructions or the verdict sheets
provided to the jury, “where the [alleged] error violates the right to a unanimous jury
verdict under Article I, Section 24, it is preserved for appeal without any action by
counsel.” State v. Wilson, 363 N.C. 478, 484, 681 S.E.2d 325, 330 (2009) (citation
omitted). “This is so because ‘the right to a unanimous jury verdict is fundamental
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STATE V. JOHNSON
Opinion of the Court
to our system of justice.’” State v. Gillikin, 217 N.C. App. 256, 261, 719 S.E.2d 164,
168 (2011) (quoting Wilson, 363 N.C. at 486, 681 S.E .2d at 331).
B. Analysis
Defendant argues that with respect to both the sexual assault purported to
have occurred inside the house and the sexual assault purported to have occurred
outside the house but on the property, “the jury heard testimony about two distinctly
different incidents involving a sex offense and the jury could have returned its
verdicts of guilt without being unanimous that the Defendant committed a particular
offense.” The State argues that the indictments were sufficient to give Defendant
notice of the charges, that there was sufficient evidence to support convictions on the
charged offenses in each location, and that the jury instructions were clear.
Upon review of both parties’ arguments, it is evident the State’s response does
not directly address Defendant’s argument. Defendant’s argument asserts the
evidence presented at trial showed multiple, distinct instances of sexual assault
occurring inside the house and multiple, distinct instances of sexual assault occurring
outside the house, but on the property. Because the jury was not provided more
details in the instructions or on the verdict sheets, Defendant contends he is not
certain whether the jury unanimously found Defendant guilty based on the same
incidents. We disagree.
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STATE V. JOHNSON
Opinion of the Court
“To convict a defendant, the jurors must unanimously agree that the State has
proven beyond a reasonable doubt each and every essential element of the crime
charged.” State v. Jordan, 305 N.C. 274, 279, 287 S.E.2d 827, 831 (1982). As this
Court has explained,
[t]here is no risk of a nonunanimous verdict . . . where the
statute under which the defendant is charged criminalizes
“a single wrong” that “may be proved by evidence of the
commission of any one of a number of acts . . .; [because in
such a case] the particular act performed is immaterial.”
State v. Petty, 132 N.C. App. 453, 460, 512 S.E.2d 428, 433 (quoting State v. Hartness,
326 N.C. 561, 566-67, 391 S.E.2d 177, 180 (1990)), appeal dismissed and disc. review
denied, 350 N.C. 598, 537 S.E.2d 490 (1999). In Petty, this Court analyzed the first
degree sexual offense in violation of N.C. Gen. Stat. § 14-27.4(a) and held the
“gravamen, or gist, is to criminalize the performance of a sexual act with a child.” Id.
at 461-62, 512 S.E.2d at 434. The statute “does not create disparate offenses, rather
it enumerates the methods by which the single wrong of engaging in a sexual act with
a child may be shown.” Id. at 462, 512 S.E.2d at 434. Thus, instructions that a
defendant could be found guilty of first degree sex offense based on different sexual
acts was not error. Id. at 462-63, 512 S.E.2d at 434. The analysis applies equally to
sexual offense with a child pursuant to N.C. Gen. Stat. § 14-27.4A and sexual activity
by a substitute parent pursuant to N.C. Gen. Stat. § 14-27.7(a), both of which
criminalize a “sexual act,” and not the method by which the sexual act is perpetrated.
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STATE V. JOHNSON
Opinion of the Court
More recently, our Supreme Court applied the same reasoning in Lawrence,
while addressing the issue of jury unanimity on three counts of indecent liberties with
a minor. Lawrence, 360 N.C. at 373, 627 S.E.2d at 612. In Lawrence, the Court
recognized that “the indecent liberties statute simply forbids ‘any immoral, improper,
or indecent liberties.’” Id. at 374, 627 S.E.2d at 612 (quoting N.C. Gen. Stat. § 14-
202.1(a)(1) (2005)). “Thus, even if some jurors found that the defendant engaged in
one kind of sexual misconduct, while others found that he engaged in another, the
jury as a whole would unanimously find that there occurred sexual conduct within
the ambit of any immoral, improper, or indecent liberties.” Id. (citations and internal
quotation marks omitted). Consequently, the Court held “a defendant may be
unanimously convicted of indecent liberties even if: (1) the jurors considered a higher
number of incidents of immoral or indecent behavior than the number of counts
charged, and (2) the indictments lacked specific details to identify the specific
incidents.” Id. at 375, 627 S.E.2d at 613.
Subsequent to Lawrence, this Court has applied the same rationale to overrule
arguments regarding jury unanimity on sexual offense charges where “‘the jury was
instructed on all issues, including unanimity; [and] separate verdict sheets were
submitted to the jury for each charge.’” State v. Brigman, 178 N.C. App. 78, 93-94,
632 S.E.2d 498, 508 (quoting Lawrence, 360 N.C. at 376, 627 S.E.2d at 613), appeal
dismissed and disc. review denied¸360 N.C. 650, 636 S.E.2d 813 (2006); see State v.
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STATE V. JOHNSON
Opinion of the Court
Wallace, 179 N.C. App. 710, 719-20, 635 S.E.2d 455, 462-63 (2006), appeal dismissed
and disc. review denied, 361 N.C. 436, 649 S.E.2d 896 (2007); State v. Burgess, 181
N.C. App. 27, 37-38, 639 S.E.2d 68, 75-76 (2007), cert. denied, 365 N.C. 337, 717
S.E.2d 384-85 (2011). This Court has also explained that
[t]he reasoning our Supreme Court set forth in Lawrence
may be imputed to sexual offense charges because: (1) N.C.
Gen. Stat. § 15-144.2(a) authorizes, for sexual offense, an
abbreviated form of indictment which omits allegations of
the particular elements that distinguish first-degree and
second-degree sexual offense[;] and (2) if a defendant
wishes additional information in the nature of the specific
“sexual act” with which he stands charged, he may move
for a bill of particulars.
Wallace, 179 N.C. App. at 720, 635 S.E.2d at 462-63 (2006) (citations omitted).
Based on Lawrence and its progeny, we overrule Defendant’s arguments
regarding jury unanimity in this case, even though the jury may have considered a
greater number of incidents than those charged in the indictments. Here, Defendant
was charged with three counts of sexual offense with a child and three counts of
sexual activity by a substitute parent in three separate indictments alleging one
count of each offense. The jury instructions and the verdict sheets distinguished
between the three sets of charges based upon the different locations where the
offenses allegedly occurred and the State presented evidence of sexual offenses in
each of the locations identified. Jury unanimity was shown as there was evidence of
fellatio inside the house both at the computer table and in the bathroom, or that there
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STATE V. JOHNSON
Opinion of the Court
was evidence of fellatio outside the house but on the property both inside a car and
in the driveway.
Moreover, this Court has identified the following factors to consider when
determining whether a defendant has been unanimously convicted by a jury:
(1) whether defendant raised an objection at trial regarding
unanimity; (2) whether the jury was instructed on all
issues, including unanimity; (3) whether separate verdict
sheets were submitted to the jury for each charge; (4) the
length of time the jury deliberated and reached a decision
on all counts submitted to it; (5) whether the record
reflected any confusion or questions as to jurors’ duty in the
trial; and (6) whether, if polled, each juror individually
affirmed that he or she had found defendant guilty in each
individual case file number.
State v. Pettis, 186 N.C. App. 116, 123, 651 S.E.2d 231, 235 (2007). In the present
case, although Defendant initially objected to the language proposed to differentiate
the charges at the charge conference, Defendant did not object to the instructions
issued to the jury or to the verdict sheets provided to the jury. The trial court
instructed the jury on its duty of unanimity and the jury returned its guilty verdicts
after approximately twenty minutes of deliberation. There is no indication in the
record that the jury was confused, and the jurors confirmed their guilty verdicts upon
being polled in open court.
Under the circumstances in this case, there is no issue concerning unanimity
of the jury verdicts. Thus, the trial court did not err in entering judgments for sexual
offense with a child and sexual activity by a substitute parent in the case numbers
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STATE V. JOHNSON
Opinion of the Court
14 CRS 1235 and 14 CRS 50591. Similarly, the trial court did not err in entering the
third judgment in 14 CRS 51139, which Defendant does not challenge on appeal.
V. Registration Requirement
Defendant also challenges the trial court’s order that he register as a sex
offender for life upon his release from prison. Upon review, we reverse the trial
court’s order concerning sex offender registration and remand to the trial court.
Our General Assembly has established registration programs to assist law
enforcement in the protection of the public from persons who are convicted of sex
offenses or of certain other offenses committed against minors. N.C. Gen. Stat. § 14-
208.5 (2015); see also N.C. Gen. Stat. § 14-208.6A (2015). To that end, a person who
has a “reportable conviction” is required to register for a period of at least 30 years.
N.C. Gen. Stat. § 14-208.7 (2015). A person who is a recidivist, who is convicted of an
aggravated offense, or who is classified as a sexually violent predator is required to
maintain registration for life. N.C. Gen. Stat. § 14-208.23 (2015).
In this case, the orders for lifetime registration were based on the court’s
findings that Defendant has been convicted of reportable convictions and that the
offenses of conviction are aggravated offenses. Defendant did not contest either of
these findings below. While Defendant acknowledges on appeal that he was convicted
of reportable convictions and is therefore required to register as a sex offender,
Defendant now contends the court erred in ordering registration for life based upon
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STATE V. JOHNSON
Opinion of the Court
findings he was convicted of aggravated offenses. Defendant argues on appeal that
neither sexual offense with a child nor sexual activity by a substitute parent are listed
as aggravated offenses in the statute. We agree.
A. Standard of Review
Despite Defendant’s failure to object below, this issue is preserved for appeal.
As stated above, N.C. Gen. Stat. § 14-208.23 provides that “[a] person who is a
recidivist, who is convicted of an aggravated offense, or who is classified as a sexually
violent predator shall maintain registration for the person’s life.” (emphasis
supplied). “[W]hen a trial court acts contrary to a statutory mandate and a defendant
is prejudiced thereby, the right to appeal the court’s action is preserved,
notwithstanding defendant’s failure to object at trial.” State v. Ashe, 314 N.C. 28, 39,
331 S.E.2d 652, 659 (1985). Defendant alleges a violation of a statutory mandate,
and “[a]lleged statutory errors are questions of law and as such, are reviewed de
novo.” State v. Mackey, 209 N.C. App. 116, 120, 708 S.E.2d 719, 721 (2011) (internal
citations omitted).
B. Analysis
For purposes of sex offender registration and SBM requirements,
“[a]ggravated offense” means any criminal offense that
includes either of the following: (i) engaging in a sexual act
involving vaginal, anal, or oral penetration with a victim of
any age through the use of force or the threat of serious
violence; or (ii) engaging in a sexual act involving vaginal,
anal, or oral penetration with a victim who is less than 12
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STATE V. JOHNSON
Opinion of the Court
years old.
N.C. Gen. Stat. § 14-208.6(1a) (2015).
Defendant asserts “the trial court ‘is only to consider the elements of the
offense of which a defendant was convicted and is not to consider the underlying
factual scenario giving rise to the conviction’ when determining whether a
defendant’s ‘conviction offense [i]s an aggravated offense. . . .’” State v. Treadway, 208
N.C. App. 286, 302, 702 S.E.2d 335, 348 (2010) (quoting State v. Davison, 201 N.C.
App. 354, 364, 689 S.E.2d 510, 517 (2009). “In other words, the elements of the
conviction offense must ‘fit within’ the statutory definition of ‘aggravated offense.’”
State v. Boyett, 224 N.C. App. 102, 116, 735 S.E.2d 371, 380 (2012) (citing State v.
Singleton, 201 N.C. App. 620, 630, 689 S.E.2d 562, 569, disc. review improvidently
allowed, 364 N.C. 418, 700 S.E.2d 226 (2010)). Thus, our review is limited to
comparing the statutory definition of “aggravated offense” to the elements of the
convicted offenses.
First, Defendant was charged and convicted on three counts of sexual offense
with a child under N.C. Gen. Stat. § 14-27.4A(a). At the time of the offenses, that
statute provided that “[a] person is guilty of sexual offense with a child if the person
is at least 18 years of age and engages in a sexual act with a victim who is a child
under the age of 13 years.” N.C. Gen. Stat. § 14-27.4A (2013). Thus, the elements of
sexual offense with a child are (1) a sexual act, (2) with a victim under the age of 13
years, (3) by a person who is at least 18 years old.
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STATE V. JOHNSON
Opinion of the Court
Second, Defendant was charged and convicted on three counts of sexual
activity by a substitute parent under N.C. Gen. Stat. § 14-27.7(a). At the time of the
offenses, that statute provided that “[i]f a defendant who has assumed the position of
a parent in the home of a minor victim engages in vaginal intercourse or a sexual act
with a victim who is a minor residing in the home . . . the defendant is guilty of a
Class E felony. Consent is not a defense to a charge under this section.” N.C. Gen.
Stat. § 14-27.7(a) (2013). Thus, the elements of sexual activity by a substitute parent
are (1) vaginal intercourse or a sexual act, (2) with a minor victim residing in a home,
(3) by a person who has assumed the position of a parent in the minor victim’s home.
When comparing the elements of the convicted offenses to the elements in the
definition of an aggravated offense, the elements do not precisely align.
We begin our analysis with part two of the definition of aggravated offense,
which the State does not address. Under part two, an offense can only be found to be
an aggravated offense if it includes “engaging in a sexual act involving vaginal, anal,
or oral penetration with a victim who is less than 12 years old.” N.C. Gen. Stat. § 14-
208.6(1a)(ii). Whereas this second category of aggravating offense requires a victim
to be under the age of 12, sexual offense with a child requires proof that the victim is
under the age of 13 and sexual activity by a substitute parent requires proof that the
victim is a minor—that is under the age of 18. Because the age elements differ and
neither convicted offense requires proof that a victim is under the age of 12,
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STATE V. JOHNSON
Opinion of the Court
Defendant’s convicted offenses are not aggravated offenses under the second part of
the aggravated offense definition. See Treadway, 208 N.C. App. at 303, 702 S.E.2d at
348 (holding “first degree sexual offense pursuant to N.C. Gen. Stat. § 14-27.4(a)(1)
is not an aggravated offense[]” because, “[c]learly, a child under the age of 13 is not
necessarily also a child less than 12 years old.”).
Although the State does not address the second part of the definition, the State
contends both sexual offense with a child and sexual activity by a substitute parent
are aggravated offenses under part one of N.C. Gen. Stat. § 14-208.6(1a). Like part
two of the definition, part one requires a sexual act involving penetration. However,
instead of an age element, part one of the aggravated offense definition requires that
the “sexual act involving vaginal, anal, or oral penetration” be perpetrated “through
the use of force or the threat of serious violence[.]” N.C. Gen. Stat. § 14-208.6(1a)(i).
On appeal, the State asserts that the sexual act in this case involved oral
penetration through the use of force. The State contends the elements of both sexual
offense with a child and sexual activity by a substitute parent fall within the elements
required for an aggravated offenses under N.C. Gen. Stat. § 14-208.6(1a)(i). In
support of its argument, the State cites State v. Sprouse, 217 N.C. App. 230, 719
S.E.2d 234 (2011), disc. review denied, 365 N.C. 552, 722 S.E.2d 787 (2012), for the
proposition that a sexual offense against a minor necessarily involves the use of force
or the threat of serious violence, because a minor is incapable of consent as a matter
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STATE V. JOHNSON
Opinion of the Court
of law. Besides asserting that the specific facts in this case show oral penetration,
facts which the State acknowledges are not considered in the determination of
whether a convicted offense is an aggravated offense, the State does not address
whether the convicted offenses require proof of penetration.
In Sprouse, the defendant was convicted on multiple counts of statutory rape,
statutory sex offense, indecent liberties with a child, and sexual activity by a
substitute parent, and ordered to enroll in lifetime SBM for all offenses. Id. at 235,
719 S.E.2d at 239. Among the issues on appeal, the defendant argued the lifetime
SBM orders were in error because the convictions were not for aggravated offenses.
Id. at 239, 719 S.E.2d 241. This Court noted “no meaningful distinction between
[first-degree rape of a child and statutory rape] for purposes of lifetime SBM” and,
therefore, affirmed the orders of lifetime SBM based on the defendant’s statutory rape
convictions. Id. at 240-41, 719 S.E.2d at 242. This Court, however, reversed the
orders of lifetime SBM based upon the convictions for statutory sex offense, sexual
activity by a substitute parent, and indecent liberties with a child because “they do
not meet the definition of an aggravated offense.” Id. at 241, 719 S.E.2d at 242.
In Sprouse, this Court relied upon State v. Clark, which held that statutory
rape was an aggravated offense because it involves penetration and the use of force
or the threat of serious violence. State v. Clark, 211 N.C. App. 60, 76, 714 S.E.2d 754,
764 (2011), disc. review denied, __ N.C. __, 722 S.E.2d 595 (2012). This Court noted
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Opinion of the Court
first-degree rape of a child is an aggravated offense because it requires proof of
vaginal intercourse and because rape of a child under the age of 13 necessarily
involves the use of force or the threat of serious violence because the child in
inherently incapable of consenting. Id. at 72-73, 714 S.E.2d at 763.
The present case is distinguishable in that the offenses of which Defendant
was convicted offenses were not rape offenses. The convicted offenses in this case
were sexual offense with a child and sexual activity by substitute parent, both of
which only require a “sexual act.” For purposes of both offenses, a “‘[s]exual act’
means cunnilingus, fellatio, analingus, or anal intercourse, but does not include
vaginal intercourse. Sexual act also means the penetration, however slight, by any
object into the genital or anal opening of another person’s body . . . .” N.C. Gen. Stat.
§ 14-27.1 (2013). Not all “sexual acts” involve the element of penetration required to
constitute an aggravated offense. In Clark, this Court differentiated first degree rape
from other offenses on the basis that
obtaining a first degree rape conviction pursuant to N.C.
Gen. Stat. § 14-27.2(a)(1) requires proof that a defendant
“engage[d] in vaginal intercourse” with his or her victim,
as compared to some other form of inappropriate contact.
N.C. Gen. Stat. § 14-27.2(a)(1). In other words, anyone
found guilty of first degree rape in violation of N.C. Gen.
Stat. § 14-27.2(a)(1) has necessarily “[engaged] in a sexual
act involving vaginal, anal, or oral penetration,” N.C. Gen.
Stat. § 14-208.6(1a), based solely on an analysis of the
elements of the conviction offense.
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Opinion of the Court
Clark, 211 N.C. App. at 73, 714 S.E.2d at 763. The same was true in Sprouse for
statutory rape. Yet, this Court specifically noted in Clark that
[t]he same is not necessarily true with respect to a
conviction for first degree sexual offense in violation of N.C.
Gen. Stat. § 14-27.4(a)(1), since an individual can be
convicted of first degree sexual offense on the basis of
cunnilingus, which does not require proof of penetration.
State v. Ludlum, 303 N.C. 666, 669, 281 S.E.2d 159, 161
(1981) (stating that “[w]e do not agree, however, that
penetration is required before cunnilingus, as that word is
used in the statute, can occur”).
Id. at 73 n. 4, 714 S.E.2d at 763 n. 4; see also State v. Hoover, 89 N.C. App. 199, 208,
365 S.E.2d 920, 926 (“Proof of a “sexual act” under G.S. 14-27.7 does not require, but
may involve, penetration.”), cert. denied, 323 N.C. 177, 373 S.E.2d 118 (1988).
Because the elements of the convicted offenses in this case require only a
sexual act, which may or may not involve penetration, neither sexual offense with a
child pursuant to N.C. Gen. Stat. § 14-27.4A nor sexual offense by a substitute parent
pursuant to N.C. Gen. Stat. § 14-27.7(a) necessarily involves the penetration
statutorily required to constitute an aggravated offense under N.C. Gen. Stat. § 14-
208.6(1a). We reverse the registration order and remand to the trial court for entry
of a registration order based upon proper findings.
IV. SBM Requirement
The trial court also ordered Defendant to enroll in SBM for the remainder of
his life upon his release from prison. In the final issue on appeal, Defendant contends
the trial court erred in ordering lifetime SBM without a determination that the
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Opinion of the Court
program was a reasonable search as mandated under Grady v. North Carolina, __
U.S. __, 191 L. Ed. 2d 459 (2015). The State concedes the issue and we agree.
The findings that Defendant’s convictions require lifetime registration for
aggravated offenses were in error. Therefore, the order for lifetime SBM must be
supported on other grounds. Defendant acknowledges the court correctly found that
he had been convicted of sex offense with a child and that lifetime SBM is mandated
by N.C. Gen. Stat. § 14-27.4A for a conviction of sex offense with a child. That statute
provides that
(b) A person convicted of [sexual offense with a child] is
guilty of a Class B1 felony and shall be sentenced pursuant
to Article 81B of Chapter 15A of the General Statutes,
except that in no case shall the person receive an active
punishment of less than 300 months, and except as
provided in subsection (c) of this section. Following the
termination of active punishment, the person shall be
enrolled in satellite-based monitoring for life pursuant to
Part 5 of Article 27A of Chapter 14 of the General Statutes.
N.C. Gen. Stat. § 14-27.4A(b) (emphasis added).
However, in Grady, the Supreme Court of the United States held that North
Carolina’s SBM program constitutes a search within the meaning of the Fourth
Amendment and must be reasonable based on the totality of the circumstances,
including the nature and purpose of the search and the extent to which the search
intrudes upon reasonable privacy expectations. Grady, __ U.S. at __, 191 L. Ed. 2d at
462. The Supreme Court then remanded the matter for a hearing on the
reasonableness of SBM in the case. Id.- 19 -
STATE V. JOHNSON
Opinion of the Court
Under the mandate of Grady, in State v. Blue, __ N.C. App. __, __, 783 S.E.2d
524, 527 (2016), this Court reversed a SBM order after “the trial court simply
acknowledged that SBM constitutes a search and summarily concluded it is
reasonable[.]” This Court held the trial court failed to follow the mandate in Grady
to determine the reasonableness of the SBM program based upon the totality of the
circumstances and remanded the matter to the trial court for a new hearing. Id. This
Court also held the State bears the burden of proving SBM and the length thereof is
reasonable. Id.In the present case, Defendant and the State agree that no evidence was
presented to demonstrate the reasonableness of lifetime SBM. As a result, we reverse
the SBM order and remand for the reasonableness determination mandated by
Grady. See Grady, __ U.S. at __, 191 L. Ed. 2d at 462.
VII. Conclusion
We hold the jury unanimously convicted Defendant on three counts each of
sexual offense with a child and sexual activity by a substitute parent. Defendant
received a fair trial free from error in the convictions or entry of those judgments.
We reverse the orders for lifetime registration and lifetime SBM and remand
to the trial court for further proceedings and orders consistent with the law. See id.It is so ordered.
NO ERROR IN PART; REVERSED IN PART AND REMANDED.
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STATE V. JOHNSON
Opinion of the Court
Judges McCULLOUGH and DILLON concur.
Judge McCULLOUGH concurred in this opinion prior to 24 April 2017.
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