State v. Griffin, COA17-386

Docket NºNo. COA17-386
Citation260 N.C.App. 629, 818 S.E.2d 336
Case DateAugust 07, 2018
CourtCourt of Appeal of North Carolina (US)

260 N.C.App. 629
818 S.E.2d 336

STATE of North Carolina
Thomas Earl GRIFFIN, Defendant.

No. COA17-386

Court of Appeals of North Carolina.

Filed: August 7, 2018

Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph Finarelli, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R. Grant, for Defendant-Appellant.

INMAN, Judge.

260 N.C.App. 629

In light of this Court's recent decision in State v. Grady , ––– N.C. App. ––––, 817 S.E.2d 18, COA17-12, 2018 WL 2206344 (15 May 2018) (" Grady II "),1

260 N.C.App. 630

absent any evidence that satellite-based monitoring ("SBM") is effective to protect the public from sex offenders, the trial court erred in imposing SBM on a sex offender for thirty years. We therefore reverse the trial court's order.


On 29 January 2004 in Craven County Superior Court, before the Honorable Benjamin G. Alford, Thomas Earl Griffin ("Defendant") proffered an Alford plea, as a part of a negotiated plea agreement, to the charge of first-degree sex offense with a child. As a

818 S.E.2d 338

part of the plea agreement, the court dismissed a charge of taking indecent liberties with a child.

The State's recitation of the facts during the plea hearing stated that Defendant was the live-in boyfriend of the victim's mother. The victim, who was eleven years old at the time of the initial disclosure, stated that Defendant had "been messing with her for the past three years," describing penile and digital penetration, as well as penetration with the use of a foreign object. Defendant made a full confession, admitting all of what the victim reported. The court sentenced Defendant to a prison term of 144 to 182 months2 and recommended that while incarcerated Defendant participate in the SOAR program (a sex offender treatment program).

Defendant was released from prison eleven years later, in June 2015. On 29 September 2015, the Department of Public Safety informed Defendant that his was a reportable sex offense as defined by N.C. Gen. Stat. § 14-208.6(4) and that he could be required to enroll in an SBM program pursuant to N.C. Gen. Stat. § 14-208.40(a)(2), as determined by a court. Defendant was instructed to appear for a "bring-back" hearing to determine whether he would be required to participate in an SBM program.

The bring-back hearing was conducted on 16 August 2016, in Craven County Superior Court, again before Judge Alford. The State introduced into evidence a "Revised STATIC-99 Coding Form" ("Static-99"), an actuarial report designed to estimate the probability of sex offender recidivism, which placed Defendant in the "moderate-low" category, above the "low" and below the "moderate-high" and "high" risk categories.3

260 N.C.App. 631

The State also called as a witness Probation and Parole Officer Caitlin Allen, who supervised Defendant and other sex offenders. Based on her review of Defendant's prison records and her own supervision, Officer Allen testified that while in prison, Defendant had not completed the SOAR program and that, since his release from prison, Defendant had not committed any criminal offenses or violated the terms of his probation, including restrictions on his location.

Officer Allen also described the physical dimensions of the SBM tracking device, how it is worn, and its general function. The State presented no evidence regarding how information gathered through SBM of Defendant would be used. The State presented no evidence regarding whether, or to what degree, SBM would be effective in protecting the public from Defendant committing another sex offense.

The prosecutor stated her belief that Defendant could be ordered to participate in an SBM program for a term of years, but not life, and "ask[ed] that [the court] find that this was a—that the Satellite Based Monitoring [was] a reasonable search." The prosecutor noted that the victim was a young child, eighteen years younger than Defendant, and that by virtue of his living arrangement with the victim's mother, Defendant held a position of trust in the victim's household. In response, counsel for Defendant argued that based on his "moderate to low level—level of risk" and his compliance with all terms of his probation, "this level of intrusion" was not warranted. The trial court took the matter under advisement without commenting on the merits of either the State's or Defendant's arguments.

On 1 September 2016, the trial court entered a form order finding that Defendant had been convicted of a reportable offense as defined by N.C. Gen. Stat. § 14-208.6 and involving the physical, mental, or sexual abuse of a minor. The order also found that Defendant was not classified as a sexually violent predator, was not a recidivist, and was not convicted of an aggravated offense.

818 S.E.2d 339

The trial court also entered, on an attached form, the following additional findings and a conclusion of law:

1. The defendant failed to participate in and[/]or complete the SOAR program.

2. The defendant took advantage of the victim's young age and vulnerability: the victim was 11 years old the defendant was 29 years old.

3. The defendant took advantage of a position of trust; the defendant was the live-in boyfriend of the victim's
260 N.C.App. 632
mother. The family had resided together for at least four years and [defendant] had a child with the victim's mother.

4. Sexual abuse occurred over a three year period of time.

The court has weighed the Fourth Amendment right of the defendant to be free from unreasonable searches and seizures with the publics [sic] right to be protected from sex offenders and the court concludes that the publics [sic] right of protection outweighs the "de minimis" intrusion upon the defendant's Fourth Amendment rights.

Based on these findings and conclusion, the trial court ordered Defendant to register as a sex offender and enroll in SBM for a period of thirty years.

Defendant appeals.


Defendant does not challenge being ordered to register as a sex offender,4 but argues that the trial court violated his Fourth Amendment rights by ordering him to submit to continuous SBM for thirty years. After careful review of the record and applicable law, we are compelled to agree.

A. Preservation of Issue

"Our appellate courts will only review constitutional questions raised and passed upon at trial." State v. Mills , 232 N.C. App. 460, 466, 754 S.E.2d 674, 678 (2014) (citations omitted).

The State argues that Defendant waived the sole issue he raises on appeal—the constitutionality of the order directing him to enroll in the SBM program—asserting "Defendant made no Fourth Amendment challenge either before or at the SBM determination hearing." We reject this argument because the question of whether Defendant's enrollment in an SBM program constituted a reasonable search was directly raised and passed upon by the trial court.

During the bring-back hearing, the prosecutor "ask[ed] that [the court] find ... Satellite Based Monitoring [was] a reasonable search." In response, Defendant argued that "this level of intrusion" was not

260 N.C.App. 633

warranted. In its order directing Defendant to enroll in a SBM program, the trial court specifically addressed "the Fourth Amendment right of ... defendant to be free from unreasonable searches ... [and] the publics [sic] right to be protected" and concluded that the public's right to be protected outweighed Defendant's privacy right.

We hold that Defendant's appeal presents a constitutional question raised and passed upon by the trial court, see id. at 466, 754 S.E.2d at 678, and is now properly before this Court.

B. Standard of Review

In reviewing [the superior court's order], we are strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.

State v. Williams , 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (citation and quotation marks omitted). This Court reviews "the trial court's conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found." State v. Singleton , 201 N.C. App. 620, 626, 689 S.E.2d 562, 566 (2010) (citation and quotation marks omitted). "We will therefore review the trial court's order to ensure that the determination that ‘defendant requires

818 S.E.2d 340

the highest possible level of supervision and monitoring’ ‘reflects a correct application of law to the facts found.’ " State v. Kilby , 198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009) (citations and brackets omitted).


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  • Commonwealth v. Feliz, SJC-12545
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 26, 2019
    ...GPS monitoring actually is effective in protecting the public against recidivism by sex offenders. Id. at 27-28. See State v. Griffin, 818 S.E.2d 336, 338, 342 (N.C. Ct. App. 2018). In assessing reasonableness, the court has looked to evidence regarding a "defendant's current threat of reof......
  • State v. Grady, 179A14-3
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    • North Carolina United States State Supreme Court of North Carolina
    • August 16, 2019
    ...of supervision and monitoring," and, if so, for how long, N.C.G.S. §§ 14-208.40A(d) - (e), -208.40B(c); see, e.g. , State v. Griffin , 818 S.E.2d 336, 338–39, 342 (N.C. Ct. App. 2018) (explaining that at the bring back hearing, the State introduced a "Static-99," "an actuarial report design......
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    • North Carolina Court of Appeal of North Carolina (US)
    • May 18, 2021
    ...563, 324 S.E.2d at 248 ; see also State v. Tucker , 266 N.C. App. 588, 589, 832 S.E.2d 258, 259 ("Simply put, after [State v. ] Griffin [260 N.C.App. 629, 818 S.E.2d 336 (2018)], trial courts cannot impose satellite-based monitoring unless the State presents actual evidence—such as ‘empiric......
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