State v. Graham, 031720 NCCA, COA17-1362

Docket Nº:COA17-1362
Opinion Judge:ARROWOOD, JUDGE.
Attorney: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.
Judge Panel:Chief Judge MCGEE concurs. Judge BRYANT concurs in part and dissents in part in separate opinion. BRYANT, Judge, concurring in part, dissenting in part.
Case Date:March 17, 2020
Court:Court of Appeals of North Carolina




No. COA17-1362

Court of Appeals of North Carolina

March 17, 2020

Heard in the Court of Appeals 7 January 2020.

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 No. 12 CRS 181 Superior Court.

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.


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

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 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."

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.

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.

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 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...

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