State v. Johnson

• Decision Date: 02 May 2017
• Docket Number: No. COA16-527,COA16-527
• Citation: 801 S.E.2d 123,253 N.C.App. 337
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Robert Harold JOHNSON

253 N.C.App. 337

801 S.E.2d 123

STATE of North Carolina

v.Robert Harold JOHNSON

No. COA16-527

Court of Appeals of North Carolina.

Filed: May 2, 2017

Attorney General Joshua H. Stein, by Special Deputy Attorney General Anita LeVeauz, for the State.

Glover & Petersen, P.A., Chapel Hill, 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

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.

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.

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 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 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.

"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.

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...