State v. Ricks, COA19-836

Docket NºNo. COA19-836
Citation271 N.C.App. 348, 843 S.E.2d 652
Case DateMay 05, 2020
CourtCourt of Appeal of North Carolina (US)

271 N.C.App. 348
843 S.E.2d 652

STATE of North Carolina
v.
Johnathan RICKS, Defendant.

No. COA19-836

Court of Appeals of North Carolina.

Filed: May 5, 2020


Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth J. Weese, for the State.

Kimberly P. Hoppin, for Defendant.

BROOK, Judge.

Johnathan Ricks ("Defendant") appeals from judgment entered upon jury verdicts finding him guilty of three counts of statutory rape of a child, two counts of statutory sex offense with a child, and three counts of taking indecent liberties with a child. Defendant also petitions for a writ of certiorari to review the trial court's order imposing lifetime satellite-based monitoring ("SBM") upon his release from prison. He argues that the trial court's imposition of SBM violates his rights under the Fourth Amendment to the United States Constitution and the North Carolina Constitution.

I. Background

A. Factual Background

N.M. and her cousin J.C. both turned 12 years old in February of 2016. Also in February of 2016, N.M. and J.C. met Defendant while attending a sleepover with their cousins at J.C.’s sister's house. Defendant and N.M.’s sister had gone to school together; N.M.’s sister was 21 years old. Defendant

843 S.E.2d 657

drove to N.M.’s sister's house and told N.M. and J.C. via Kik, a texting app, to come outside. Around 2:00 or 3:00 a.m. on some day in February 2016, N.M. and J.C. went outside, got into Defendant's car, and then N.M. and Defendant had oral and vaginal sex in the car while J.C. stood outside. Then J.C. got in the car and had vaginal sex with Defendant in the back seat while N.M. sat in the front seat. Defendant had vaginal sex with N.M. again, and then J.C. and N.M. both performed oral sex on Defendant. Defendant drove the cousins back to N.M.’s sister's house and they went to sleep.

N.M. and Defendant continued communicating via Kik until August of 2016. Around midnight on 14 August 2016, Defendant told N.M. via Kik to go outside of her house; she did. Defendant was driving a gray Chevrolet Malibu, and N.M. got into the car and went with him to his house down the road. Defendant asked her to perform oral sex on him, which she did, and then they had vaginal sex in the car. They then went inside his house and had vaginal sex in his bedroom. Defendant drove N.M. home, and, when she got out of his car around 3:30 a.m., her brother was standing in the yard. N.M.’s brother had known Defendant for about five years and recognized Defendant's car, although he did not see Defendant in the car. N.M.’s brother went inside, woke up their mother, and walked down to Defendant's house to confront him. N.M.’s mother called the police, who arrived about 20 minutes later.

N.M.’s mother took N.M. to the hospital where hospital personnel collected a rape kit, her clothing, vaginal swabs, and pubic hair combings. A sexual assault nurse examiner also interviewed N.M. J.C.’s mother also spoke with law enforcement and a doctor after learning of Defendant's sexual activity with N.M. and J.C. J.C. told her mother that the sexual activity with Defendant had been occurring since February of 2016.

Defendant met voluntarily with law enforcement and provided a DNA sample. He also confirmed that he was born in 1995. Microscopic examinations of N.M.’s vaginal swabs revealed the presence of sperm, and DNA analysis of the swabs revealed that the sperm fraction matched the profile obtained from Defendant.

B. Procedural History

Defendant was indicted by a Harnett County grand jury for three counts of statutory rape of a child by an adult, three counts of statutory sex offense with a child by an adult, three counts of first-degree kidnapping, and three counts of taking indecent liberties with a child. He was tried before a jury during the 14 January 2019 session of criminal Superior Court of Harnett County before Judge Hill. Both juvenile victims testified regarding the sexual encounters with Defendant. J.C.’s mother and N.M.’s brother also testified, corroborating the victims’ testimony. The State also presented testimony from a state forensic scientist, who had compared Defendant's DNA sample with the DNA collected from N.M.’s rape kit. She testified that Defendant's DNA matched the DNA sample, and that the probability of a random match "is approximately ... one in 9.42 nonillion in the African-American population." Defendant did not testify.

At the close of the State's evidence, Defendant moved to dismiss the three kidnapping charges, and the trial court granted the motion. The jury returned verdicts of guilty to three counts of statutory rape of a child by an adult, two counts of statutory sex offense with a child, and three counts of indecent liberties with a child. The trial court consolidated the offenses and entered judgment on 17 January 2019, sentencing Defendant to a mandatory term of 300 to 420 months of active imprisonment.

The trial court then ordered Defendant to register as a sex offender for his natural life and enroll in SBM for his natural life based on the convictions for statutory rape and sex offense with a child. Based on the convictions for indecent liberties with a child, the trial court ordered Defendant to register as a sex offender for 30 years and ordered that the Division of Adult Corrections perform a risk assessment for a determination of SBM.

Defendant entered notice of appeal in open court on 17 January 2019.

843 S.E.2d 658

II. Jurisdiction

Appeal from a final judgment of a superior court lies of right with this Court. N.C. Gen. Stat. § 7A-27(b)(1) (2019) ; id. § 15A-1444(a) (2019).

Defendant failed to properly notice appeal from the imposition of SBM under North Carolina Rules of Appellate Procedure, Rule 3. See State v. Brooks , 204 N.C. App. 193, 195, 693 S.E.2d 204, 206 (2010) (requiring written notice of appeal filed under N.C. R. App. P. 3 for review of SBM orders). Defendant filed a petition for a writ of certiorari contemporaneously with his appellate brief, seeking review of the order imposing lifetime enrollment in SBM. We consider his petition infra part III.B.

III. Analysis

Defendant contends that the State made improper closing arguments that unfairly and unconstitutionally prejudiced him. Defendant further contends that the trial court erred in imposing lifetime SBM because the State failed to establish that SBM constitutes a reasonable search under the Fourth Amendment. We review each argument in turn.

A. Closing Arguments

i. Standard of Review

Our standard of review of an allegedly improper closing argument depends on whether a defendant timely objected to such remarks.

Generally, where a defendant objects to improper remarks, we review "whether the trial court abused its discretion by failing to sustain the objection." State v. Jones , 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). "In order to assess whether a trial court has abused its discretion when deciding a particular matter, this Court must determine if the ruling could not have been the result of a reasoned decision." Id. (internal marks and citation omitted). Even if this is the case, a defendant only receives relief if the challenged "remarks were of such a magnitude that their inclusion prejudiced defendant[.]" State v. Walters , 357 N.C. 68, 101, 588 S.E.2d 344, 364 (2003) (citation omitted).

Where a defendant has failed to object to an allegedly improper remark, we review "whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu. " Jones , 355 N.C. at 133, 558 S.E.2d at 107.

In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made.

Id. To establish that a remark merited intervention ex mero motu, a "defendant must show that the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair." State v. Grooms , 353 N.C. 50, 81, 540 S.E.2d 713, 732 (2000) (citation omitted).

Our review differs, however, where an improper remark infringes on a criminal defendant's constitutional rights. State v. Kemmerlin , 356 N.C. 446, 482, 573 S.E.2d 870, 894 (2002). In such circumstances, the State must show that the error was harmless beyond a reasonable doubt. Id. (reviewing for harmless error a prosecutor's comment on a criminal defendant's Sixth Amendment right to a jury trial).

ii. Merits

Defendant takes issue with several remarks made by the prosecutor; we review each claim in turn.

Defendant first claims that the prosecutor improperly commented on Defendant's exercise of his Fifth Amendment right to not incriminate himself. The prosecutor stated: "If [defense counsel] had some evidence that would present a defense for his client, have no doubt he would have presented that to you." Defense counsel objected to this statement, and the trial court sustained the objection, struck the statement...

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12 practice notes
  • State v. Hilton, 292A20
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • September 24, 2021
    ...2020 WL 2126759 ( N.C. Ct. App. May 5, 2020) (unpublished). Recidivist Lifetime SBM Order Held Unconstitutional State v. Ricks, 271 N.C.App. 348, writ allowed, 375 N.C. 281 (2020). Non-Recidivist Lifetime SBM Order Vacated State v. Jackson, No. COA18-1122, 2020 WL 2847885 ( N.C. Ct. App. Ju......
  • State v. Hilton, 292A20
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • September 24, 2021
    ...COA18-507, 2020 WL 2126759(N.C. Ct. App. May 5, 2020) (unpublished).Recidivist LifetimeSBM Order Held UnconstitutionalState v. Ricks , 271 N.C. App. 348, writ allowed , 375 N.C. 281 (2020).Non-Recidivist LifetimeSBM Order VacatedState v. Jackson , No. COA18-1122, 2020 WL 2847885(N.C. Ct. Ap......
  • State v. Perkins, COA20-572
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • October 18, 2022
    ...the application of the Rules "[t]o prevent manifest injustice[,]" N.C. R. App. P. 2, and reviewed two SBM orders, State v. Ricks, 271 N.C.App. 348, 358, 843 S.E.2d 652, 661-62, rev'd, 378 N.C. 737, 2021-NCSC-116 (2020), something our Court had been doing as a matter of course for quite some......
  • State v. Perkins, COA20-572
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 6, 2022
    ...the application of the Rules "[t]o prevent manifest injustice[,]" N.C. R. App. P. 2, and reviewed two SBM orders, State v. Ricks, 271 N.C.App. 348, 358, 843 S.E.2d 652, 661-62, rev'd, 378 N.C. 737, 2021-NCSC-116 (2020), something our Court had been doing as a matter of course for quite some......
  • Request a trial to view additional results
15 cases
  • State v. Hilton
    • United States
    • United States State Supreme Court of North Carolina
    • September 24, 2021
    ...COA18-507, 2020 WL 2126759(N.C. Ct. App. May 5, 2020) (unpublished).Recidivist LifetimeSBM Order Held UnconstitutionalState v. Ricks , 271 N.C. App. 348, writ allowed , 375 N.C. 281 (2020).Non-Recidivist LifetimeSBM Order VacatedState v. Jackson , No. COA18-1122, 2020 WL 2847885(N.C. Ct. Ap......
  • State v. Perkins
    • United States
    • Court of Appeal of North Carolina (US)
    • December 6, 2022
    ...the application of the Rules "[t]o prevent manifest injustice[,]" N.C. R. App. P. 2, and reviewed two SBM orders, State v. Ricks, 271 N.C.App. 348, 358, 843 S.E.2d 652, 661-62, rev'd, 378 N.C. 737, 2021-NCSC-116 (2020), something our Court had been doing as a matter of course for quite some......
  • State v. Perkins
    • United States
    • Court of Appeal of North Carolina (US)
    • December 6, 2022
    ...the application of the Rules "[t]o prevent manifest injustice[,]" N.C. R. App. P. 2, and reviewed two SBM orders, State v. Ricks, 271 N.C.App. 348, 358, 843 S.E.2d 652, 661-62, rev'd, 378 N.C. 737, 2021-NCSC-116 (2020), something our Court had been doing as a matter of course for quite some......
  • State v. Perkins
    • United States
    • Court of Appeal of North Carolina (US)
    • October 18, 2022
    ...the application of the Rules "[t]o prevent manifest injustice[,]" N.C. R. App. P. 2, and reviewed two SBM orders, State v. Ricks, 271 N.C.App. 348, 358, 843 S.E.2d 652, 661-62, rev'd, 378 N.C. 737, 2021-NCSC-116 (2020), something our Court had been doing as a matter of course for quite some......
  • Request a trial to view additional results

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