              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-696

                                  Filed: 3 July 2018

Randolph County, Nos. 15 CRS 53927-28; 15 CRS 54128

STATE OF NORTH CAROLINA

             v.

DARREN WAYNE GENTLE


      Appeal by defendant from judgment and order entered 6 October 2016 by

Judge Lindsay R. Davis in Randolph County Superior Court. Heard in the Court of

Appeals 7 February 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Joseph E.
      Elder, for the State.

      Richard J. Costanza, for defendant-appellant.


      CALABRIA, Judge.


      Darren Wayne Gentle (“defendant”) appeals from the trial court’s judgment

entered upon jury verdicts finding him guilty of first-degree forcible rape, first-degree

forcible sexual offense, second-degree kidnapping, and committing a crime against

nature. After careful review, we conclude that defendant received a fair trial, free

from prejudicial error. Defendant has also filed a petition for writ of certiorari

requesting review of the trial court’s order requiring him to enroll in satellite-based

monitoring (“SBM”) for the remainder of his natural life. However, defendant failed

to preserve his constitutional challenge to the SBM order by raising the argument at
                                           STATE V. GENTLE

                                           Opinion of the Court



trial. Accordingly, we deny defendant’s petition for writ of certiorari and dismiss his

appeal of the issue for lack of jurisdiction.

                              I. Factual and Procedural Background

        In August 2015, Jane Smith (“Smith”),1 age 25, was approximately seven

months pregnant and living with her boyfriend at his mother’s house in Asheboro,

North Carolina. At around 4:00 p.m. on 28 August 2015, Smith had an argument

with her boyfriend’s mother and left the residence. She walked to a gas station to

purchase cigarettes. However, when Smith arrived to the gas station at 5:00 p.m.,

the clerk refused to sell cigarettes to her because she did not have identification.

Smith saw defendant staring at her and asked him to purchase cigarettes for her; he

agreed. Defendant invited Smith to purchase crack cocaine, and she did so. Smith

and defendant met with a drug dealer, purchased crack cocaine, and then walked to

a shed at defendant’s parents’ house, which contained a bed, chairs, and a television.

At the shed, Smith injected crack cocaine, while defendant smoked it and some

marijuana. After using the drugs, Smith walked back to the gas station to meet a

friend. defendant subsequently returned to the gas station and invited Smith to use

more drugs; she agreed. They walked to a parking lot surrounded by a dark, wooded

area.




        1   A pseudonym is used for the privacy of the victim.

                                                   -2-
                                  STATE V. GENTLE

                                  Opinion of the Court



       Once they were in the parking lot, defendant approached Smith from behind

and threatened her. Smith resisted and attempted to flee, but defendant caught up

to her near the stairs of the parking lot. As Smith struggled to protect her stomach,

defendant dragged her down the stairs, forced her into the woods, and removed her

clothing. Defendant disrobed and inserted his fingers into Smith’s anus and vagina.

She told him to stop, but he did not. He then placed his penis in her anus and vagina.

Smith did not consent to these acts. Afterwards, defendant repeatedly expressed

concern that Smith would contact law enforcement, but she assured him that she

would not, due to outstanding warrants for her arrest. Instead, she asked if they

could return to defendant’s shed. Defendant led Smith back to the shed, where they

both fell asleep.

       When Smith awoke, defendant prevented her from leaving. She told defendant

that she needed to get to a hospital to receive treatment for the scrapes she incurred

during the struggle. She changed clothes, and defendant allowed her to leave the

shed. He invited her back into the woods, but she declined. Smith saw a neighbor,

and as she approached him, defendant fled into the woods. Smith asked the neighbor

for something to drink and contacted her father. Smith’s father arrived and took her

to the hospital.




                                         -3-
                                     STATE V. GENTLE

                                     Opinion of the Court



      At the hospital, Smith informed medical staff that she had been raped. She

denied having used drugs. Smith also spoke with a detective, who photographed her

injuries. The next day, she turned herself in for her outstanding warrants.

      On 14 March 2016, defendant was indicted for first-degree rape, kidnapping,

crime against nature, and first-degree sexual offense. Trial commenced on 4 October

2016 in Randolph County Superior Court. Defendant did not present evidence but

moved to dismiss all charges at the close of the State’s evidence and at the close of all

the evidence. The trial court denied both motions.

      On 6 October 2016, the jury returned verdicts finding defendant guilty of first-

degree rape, second-degree kidnapping, crime against nature, and first-degree sexual

offense. The trial court arrested judgment on the kidnapping charge. The trial court

then consolidated judgments on the remaining charges, and sentenced defendant to

a minimum of 365 months and a maximum of 498 months in the custody of the North

Carolina Division of Adult Correction. The court further ordered that defendant

register as a sex offender and, upon his release from prison, be enrolled in SBM for

the remainder of his natural life.

      Defendant appeals.

                                  II. Jury Instruction

      In his first argument, defendant contends that the trial court erred by

instructing the jury that it could find that the victim suffered a “serious personal



                                            -4-
                                   STATE V. GENTLE

                                   Opinion of the Court



injury” in the form of a mental injury, because the State presented no evidence to

support such instruction. Because he failed to object to the allegedly erroneous

instruction at trial, defendant requests plain error review of this issue.

                                A. Standard of Review

      “In criminal cases, an issue that was not preserved by objection noted at trial

and that is not deemed preserved by rule or law without any such action nevertheless

may be made the basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to plain error.” N.C.R.

App. P. 10(a)(4).    The plain error standard of review applies “to unpreserved

instructional or evidentiary error. For error to constitute plain error, a defendant

must demonstrate that a fundamental error occurred at trial.” State v. Lawrence,

365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).            “To show that an error was

fundamental, a defendant must establish prejudice—that, after examination of the

entire record, the error had a probable impact on the jury’s finding that the defendant

was guilty.” Id. (citation and internal quotation marks omitted). Plain error arises

when the error is “so basic, so prejudicial, so lacking in its elements that justice

cannot have been done[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378

(1983) (citation and quotation marks omitted).

                                      B. Analysis




                                          -5-
                                  STATE V. GENTLE

                                  Opinion of the Court



      For several decades, our appellate courts consistently held “that it was per se

plain error for a trial court to instruct the jury on a theory of the defendant’s guilt

that was not supported by the evidence.” State v. Robinson, __ N.C. App. __, __, 805

S.E.2d 309, 318 (2017) (citation omitted). However, in State v. Boyd, 366 N.C. 548,

742 S.E.2d 798 (2013) (per curiam), our Supreme Court adopted a dissent from this

Court which advocated a “shift away from the per se rule . . . that a reviewing court

‘must assume’ that the jury relied on the improper theory.” State v. Martinez, __ N.C.

App. __, __, 801 S.E.2d 356, 361 (2017) (citation omitted); see also State v. Boyd, 366

N.C. 548, 742 S.E.2d 798 (2013) (reversing per curiam for the reasons stated in State

v. Boyd, 222 N.C. App. 160, 730 S.E.2d 193 (2012) (Stroud, J., dissenting)). “Rather,

under Boyd, a reviewing court is to determine whether a disjunctive jury instruction

constituted reversible error, without being required in every case to assume that the

jury relied on the inappropriate theory.” Martinez, __ N.C. App. at __, 801 S.E.2d at

361 (concluding that the defendant “failed to meet his burden of showing that the

trial court’s inclusion of ‘analingus’ in the jury instruction had any probable impact

on the jury’s verdict[,]” because the victim “was clear in her testimony regarding the

occasions where fellatio and anal intercourse had occurred”).

      In North Carolina, the offenses of forcible rape and forcible sexual offense may

be elevated to the first degree when the offender “[i]nflicts serious personal injury

upon the victim . . . .” N.C. Gen. Stat. § 14-27.21(a)(2) (2017); id. § 14-27.26(a)(2).



                                         -6-
                                   STATE V. GENTLE

                                  Opinion of the Court



The State may offer evidence of bodily or mental injuries to prove that the victim

suffered a “serious personal injury.” State v. Boone, 307 N.C. 198, 204, 297 S.E.2d

585, 589 (1982), overruled on other grounds by State v. Richmond, 347 N.C. 412, 495

S.E.2d 677, cert. denied, 525 U.S. 843, 142 L. Ed. 2d 88 (1998). “In determining

whether serious personal injury has been inflicted, the court must consider the

particular facts of each case.” State v. Herring, 322 N.C. 733, 739, 370 S.E.2d 363,

367 (1988). The element may be established through evidence of

             a series of incidents forming one continuous transaction
             between the rape or sexual offense and the infliction of the
             serious personal injury. Such incidents include injury
             inflicted on the victim to overcome resistance or to obtain
             submission, injury inflicted upon the victim or another in
             an attempt to commit the crimes or in furtherance of the
             crimes of rape or sexual offense, or injury inflicted upon the
             victim or another for the purpose of concealing the crimes
             or to aid in the assailant’s escape.

Id. (citation omitted).

      In order to prove a serious personal injury based on mental or emotional harm,

the State must show that (1) the defendant caused the harm; (2) the harm extended

for some appreciable period of time beyond the incidents surrounding the crime; and

(3) the harm was more than the res gestae results that are inherent to every forcible

rape or sexual offense. State v. Finney, 358 N.C. 79, 90, 591 S.E.2d 863, 869 (2004).

“Res gestae results are those so closely connected to an occurrence or event in both




                                         -7-
                                    STATE V. GENTLE

                                   Opinion of the Court



time and substance as to be a part of the happening.” Id. (citation, quotation marks,

and brackets omitted).

      In the instant case, the State presented substantial evidence that defendant

inflicted bodily harm upon Smith as he attempted to overcome her resistance.        See

Herring, 322 N.C. at 739, 370 S.E.2d at 367. Although she attempted to fight, Smith

was approximately seven months pregnant, and she struggled to protect her stomach

while defendant forcibly dragged her down 33 concrete stairs and into the nearby

woods. Smith sustained extensive bruises and abrasions to most of the left side of

her body, including her leg, abdomen, back, side, arm, and shoulder. Although some

of her wounds were superficial, others were “much, much deeper” abrasions that

stripped off the first layer of skin and exposed the dermis. At trial, Jennifer Whitley,

the Sexual Assault Nurse Examiner who treated Smith at the hospital, compared her

injuries to the “road rash” that a person might suffer after falling off a motorcycle

traveling at 55 miles per hour. Smith testified that her injuries were very painful,

and she still bore extensive scars at trial.

      On appeal, defendant asserts that the trial court’s erroneous mental injury

instruction probably impacted the jury’s verdicts, because the evidence supporting

the seriousness of Smith’s bodily injuries was “equivocal.” For support, defendant

cites the following testimony:

             [THE STATE:] Let me ask you this. How were you treated
             at the hospital? What did they do for your injuries?


                                           -8-
                                  STATE V. GENTLE

                                  Opinion of the Court




             [SMITH:] There wasn’t much—they gave me antibiotics for
             the scrapes, bandaged up my legs, but there wasn’t more
             they could do.

             Q. No broke bones, internal injuries, nothing like that?
             Nothing serious?

             A. No.

(Emphasis added).

      The trial court, however, rejected this very same argument in denying

defendant’s motion to dismiss the charges of first-degree forcible rape and sexual

offense. Once the trial court determined that the State presented sufficient evidence

to withstand defendant’s motion to dismiss, it was for the jury, as finders of fact, to

determine whether Smith sustained a serious personal injury.          The trial court

instructed the jury that second-degree rape and sexual offense differ from the first-

degree offenses “only in that it is not necessary for the State to prove beyond a

reasonable doubt that the defendant inflicted serious personal injury upon the alleged

victim.”   During deliberations, the jury requested to review pictures of Smith’s

“personal injuries down her left side.” After the jury found defendant guilty of both

offenses in the first degree, defense counsel requested that the jury be individually

polled on the charge of first-degree rape. The jurors unanimously affirmed their

verdict.




                                         -9-
                                   STATE V. GENTLE

                                   Opinion of the Court



      Consequently, even assuming, arguendo, that there was no evidence to support

the trial court’s instruction on mental injury, defendant failed to meet his burden of

showing that the alleged error had any probable impact on the jury’s verdict.

Martinez, __ N.C. App. at __, 801 S.E.2d at 361. This argument is overruled.

                                III. Motion to Dismiss

      Defendant next argues that the trial court erred by denying his motion to

dismiss the crime against nature charge, because the State failed to offer substantial

evidence that the offense was committed in a “public place.” We disagree.

                                A. Standard of Review

      In reviewing a criminal defendant’s motion to dismiss, the question for the trial

court “is whether there is substantial evidence (1) of each essential element of the

offense charged, or of a lesser offense included therein, and (2) of defendant’s being

the perpetrator of such offense. If so, the motion is properly denied.” State v. Fritsch,

351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890,

148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” State v. Smith,

300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “[T]he trial court must consider all

evidence admitted, whether competent or incompetent, in the light most favorable to

the State, giving the State the benefit of every reasonable inference and resolving any

contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223



                                          - 10 -
                                  STATE V. GENTLE

                                  Opinion of the Court



(1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). We review the trial

court’s denial of a criminal defendant’s motion to dismiss de novo. State v. Smith,

186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).

                                     B. Analysis

      Pursuant to N.C. Gen. Stat. § 14-177 (2017), “[i]f any person shall commit the

crime against nature, with mankind or beast, he shall be punished as a Class I felon.”

“[P]enetration by or of a sexual organ is an essential element” of the crime against

nature. State v. Stiller, 162 N.C. App. 138, 140, 590 S.E.2d 305, 307 (citation and

quotation marks omitted), appeal dismissed and disc. review denied, 358 N.C. 240,

596 S.E.2d 19 (2004). “[T]he offense is broad enough to include all forms of oral and

anal sex, as well as unnatural acts with animals.” Id.

      N.C. Gen. Stat. § 14-177 “punish[es] persons who undertake by unnatural and

indecent methods to gratify a perverted and depraved sexual instinct which is an

offense against public decency and morality.” State v. Hunt, 365 N.C. 432, 440, 722

S.E.2d 484, 490 (2012) (citation and quotation marks omitted).        The statute “is

unconstitutional when used to criminalize acts within private relations protected by

the Fourteenth Amendment liberty interest.” State v. Whiteley, 172 N.C. App. 772,

779, 616 S.E.2d 576, 581 (2005) (citing Lawrence v. Texas, 539 U.S. 558, 156 L. Ed 2d

508 (2003)). However, N.C. Gen. Stat. § 14-177 is facially constitutional and “may

properly be used to prosecute conduct in which a minor is involved, conduct involving



                                         - 11 -
                                    STATE V. GENTLE

                                    Opinion of the Court



non-consensual or coercive sexual acts, conduct occurring in a public place, or conduct

involving prostitution or solicitation[.]” Id.

      In the instant case, the trial court instructed the jury on the “public place”

theory of the crime against nature. In this context, “[a] place is public if it is open or

available for all to use, share, or enjoy.” In re R.L.C., 179 N.C. App. 311, 318, 635

S.E.2d 1, 5 (2006) (citation and quotation marks omitted), aff’d on other grounds, 361

N.C. 287, 643 S.E.2d 920, cert. denied, 552 U.S. 1024, 169 L. Ed. 2d 396 (2007). “A

parking lot is available for all to use and is thus a public place.” Id.

      On appeal, defendant contends that the State failed to prove that the offense

occurred in a “public place” because “the events described by [Smith] occurred well

outside the public view in an area . . . described as ‘dark’ and ‘wooded.’ ” We disagree.

      It is a violation of N.C. Gen. Stat. § 14-177 to engage in sexual acts in a public

place; there is no requirement that the prohibited conduct occur in public view. See

id. (explaining that “whether anyone saw respondent engaged in sexual behavior in

a parked car in a public parking lot is immaterial to whether he engaged in the

activity in a public place”). Similarly, Smith’s description of the “dark” and “wooded”

area does not foreclose its status as a public place.       Indeed, Smith consistently

testified that the offenses occurred at the bottom of the stairs in the parking lot:

             [THE STATE:] . . . Did you say anything or scream
             anything while you were being pulled down the steps?

             [SMITH:] I was telling him to stop. I was screaming stop.


                                           - 12 -
                     STATE V. GENTLE

                    Opinion of the Court




Q. Did he stop?

A. No.

Q. Okay. When you got to the bottom of the steps, what
happened then?

A. He got on top of me. He started pulling his clothes off,
his shorts and his underwear off. He pulled my shorts off,
pulled my underwear off, and began to finger me.

...

[THE STATE:] Okay. Just so we’re clear, where this
happened, how far did he drag you into the woods?

[SMITH:] Well we weren’t even probably like 10, 5 feet
from the stairs.

...

[THE STATE:] Okay. Did you ask him to take you
anywhere, at some point?

[SMITH:] I—yeah. I did ask to go back to his shed. That
was an attempt to hopefully get him to walk me back
through the roads so I could try and get some help from
someone.

Q. Okay. Now, this happened at the bottom of the
stairway, correct?

A. Yes.

Q. Okay. After he did this to you, did ya’ll go back up the
stairs? Where did ya’ll go?

A. No. We went through the woods? [sic]



                           - 13 -
                                      STATE V. GENTLE

                                     Opinion of the Court



                Q. Did you know where you were?

                A. No.

                Q. Were you familiar with those woods?

                A. No.

                Q. Okay. At what point, after walking in the woods with
                him, did you ask him if you could go back to the shed with
                him?

                A. This was when we were still at the bottom of the stairs,
                before we ever started walking anywhere.

Investigating officers subsequently discovered Smith’s shorts, underwear, and a flip-

flop in the woods approximately 30 feet away from the bottom of the parking lot

stairs.

          Taken in the light most favorable to the State, this is sufficient evidence from

which a reasonable juror could conclude that defendant unlawfully engaged in sexual

acts in a public place. Therefore, the trial court did not err by denying defendant’s

motion to dismiss the crime against nature charge.

                              IV. Satellite-Based Monitoring

          In his last argument, defendant requests that we grant his petition for writ of

certiorari to review the trial court’s order requiring him to enroll in SBM for the

remainder of his natural life. Defendant argues that the trial court erred by ordering

him to submit to SBM without first making a reasonableness determination as

required by Grady v. North Carolina, 575 U.S. __, 191 L. Ed. 2d 459 (2015) (per


                                            - 14 -
                                    STATE V. GENTLE

                                   Opinion of the Court



curiam). However, defendant concedes that he failed to make this constitutional

argument to the trial court, and that his appeal from the SBM order is untimely.

Accordingly, defendant implicitly “asks this Court to take two extraordinary steps to

reach the merits, first by issuing a writ of certiorari to hear th[e] appeal, and then by

invoking Rule 2 of the North Carolina Rules of Appellate Procedure to address his

unpreserved constitutional argument.” State v. Bishop, __ N.C. App. __, __, 805

S.E.2d 367, 369 (2017), disc. review denied, __ N.C. __, 811 S.E.2d 159 (2018). We

decline to do so.

      As we explained in Bishop, “[a] writ of certiorari is not intended as a substitute

for a notice of appeal. If this Court routinely allowed a writ of certiorari in every case

in which the appellant failed to properly appeal, it would render meaningless the

rules governing the time and manner of noticing appeals.” Id. Rather, “a petition for

the writ must show merit or that error was probably committed below.” Id. (quoting

State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959)).

      As in Bishop, defendant’s Fourth Amendment argument “is procedurally

barred because he failed to raise it in the trial court.” Id. Like the Bishop defendant,

he had the benefit of our Court’s decisions in State v. Morris, 246 N.C. App. 349, 783

S.E.2d 528 (2016) and State v. Blue, 246 N.C. App. 259, 783 S.E.2d 524 (2016), which

“outlined the procedure defendants must follow to preserve a Fourth Amendment

challenge to satellite-based monitoring in the trial court.” Id. Therefore, “the law



                                          - 15 -
                                   STATE V. GENTLE

                                   Opinion of the Court



governing preservation of this issue was settled at the time [defendant] appeared

before the trial court.” Id. Since defendant “is no different from other defendants

who failed to preserve their constitutional arguments in the trial court, and because

he has not argued any specific facts that demonstrate manifest injustice if we decline

to invoke Rule 2,” we deny defendant’s petition for writ of certiorari and dismiss his

appeal of this issue. Id. at __, 805 S.E.2d at 370.

                                     V. Conclusion

      Even assuming, arguendo, that the trial court erroneously instructed the jury

that it could find that Smith suffered a serious personal injury based on mental harm,

defendant failed to prove that such error probably impacted the jury’s verdicts finding

him guilty of first-degree forcible rape and forcible sexual offense. The trial court did

not err by denying defendant’s motion to dismiss the crime against nature charge,

because the State presented substantial evidence that the offense occurred in a

“public place.” In our discretion, we deny defendant’s petition for writ of certiorari

and dismiss his untimely appeal of the trial court’s SBM order.

      NO ERROR IN PART; DISMISSED IN PART.

      Judge ZACHARY concurs.

      Judge ARROWOOD concurs in part and dissents in part by separate opinion.




                                          - 16 -
 No. COA17-696 – State v. Gentle


      ARROWOOD, Judge, concurring in part, dissenting in part.


      I agree with the majority opinion that defendant failed to show that any alleged

error with respect to the mental injury instruction had a probable impact on the jury’s

verdict, and that the trial court did not err by denying defendant’s motion to dismiss

the charge of committing a crime against nature. With respect to the third issue,

given that the State has conceded error, I respectfully dissent. Unlike the majority,

I would issue a writ of certiorari to hear defendant’s third argument on appeal, and

then invoke Rule 2 of the North Carolina Rules of Appellate Procedure to address the

merits of the argument.

      Our Court has discretion to allow a petition for a writ of certiorari to review

judgments and orders below when, as here, “the right to prosecute an appeal has been

lost by failure to take timely action.” N.C.R. App. P. 21(a)(1) (2018). Such relief “is

not intended as a substitute for a notice of appeal.” State v. Bishop, __ N.C. App. __,

__, 805 S.E.2d 367, 369 (2017), disc. review denied, __ N.C. __, 811 S.E.2d 159 (2018).

Thus, our Court must only allow writs of certiorari that “show merit or that error was

probably committed below.” Id. (citation omitted).

      Under Rule 2, “[t]o prevent manifest injustice to a party[ ] . . . either court of

the appellate division may[ ] . . . suspend or vary the requirements or provisions of

any of [the North Carolina Rules of Appellate Procedure] in a case pending before it

upon application of a party or upon its own initiative[.]” N.C.R. App. P. 2 (2018). Our

Court only invokes Rule 2 in exceptional circumstances to address “significant issues
                                    STATE V. GENTLE

                    ARROWOOD, J., concurring in part, dissenting in part



of importance in the public interest or to prevent injustice which appears manifest to

the Court and only in such instances.” State v. Campbell, 369 N.C. 599, 603, 799

S.E.2d 600, 602 (2017) (emphasis, citations, and quotation marks omitted).              A

determination as to “whether a particular case is one of the rare ‘instances’

appropriate for Rule 2 review—must necessarily be made in light of the specific

circumstances of individual cases and parties, such as whether ‘substantial rights of

an appellant are affected.’ ” Id. (quoting State v. Hart, 361 N.C. 309, 316, 644 S.E.2d

201, 205 (2007)).   Invoking Rule 2 is a case-specific decision that “rests in the

discretion of the panel assigned to hear the case and is not constrained by precedent.”

State v. Bursell, __ N.C. App. __, __, 813 S.E.2d 463, 467 (2018) (citation omitted).

      Defendant argues the trial court erred by ordering defendant to submit to the

satellite-based monitoring (“SBM”) program without first determining whether the

order was reasonable. As the majority explains, defendant failed to appeal the SBM

order, and did not object at trial to preserve the issue for appeal; therefore, a writ of

certiorari must be granted and Rule 2 must be invoked before our Court can address

this argument.

      In Grady v. North Carolina, 575 U.S. __, 191 L. Ed. 2d 459 (2015) (per curiam),

the Supreme Court of the United States held that North Carolina’s SBM program

effectuates a continuous warrantless search, subject to the Fourth Amendment. Id.

at __, 191 L. Ed. 2d at 462. Accordingly, before ordering a defendant to enroll in the



                                             2
                                    STATE V. GENTLE

                    ARROWOOD, J., concurring in part, dissenting in part



SBM program, a trial court must “determine, based on the totality of the

circumstances, if the SBM program is reasonable when properly viewed as a search.”

State v. Blue, 246 N.C. App. 259, 265, 783 S.E.2d 524, 527 (2016) (citations omitted).

Here, nothing in the record indicates the trial court considered the reasonableness of

the order before ordering defendant to enroll in the SBM program for the rest of his

natural life. This failure violated defendant’s Fourth Amendment rights. See id.

Therefore, it would be appropriate to grant writ of certiorari to hear this issue, and I

would exercise the discretion to do so.

      To prevent manifest injustice, I would also invoke Rule 2. The trial court

deprived defendant of a substantial right when it did not address the reasonableness

of subjecting him to SBM for the rest of his life. See Bursell, __ N.C. App. at __, 813

S.E.2d at 467 (“It is axiomatic that a constitutional right is a ‘substantial right.’ ”).

Although this deprivation does not require us to invoke Rule 2, in view of the gravity

of subjecting defendant to a potentially unreasonable search for life in violation of his

substantial rights under the Fourth Amendment, and the State’s concession that, had

this issue been properly preserved, the trial court’s failure would amount to reversible

error, I would invoke Rule 2 to review defendant’s argument.

      I now turn to the merits of defendant’s argument. Because nothing in the

record indicates the trial court considered the reasonableness of ordering defendant’s

lifelong participation in the SBM program, as required by Grady, there was Grady



                                             3
                                   STATE V. GENTLE

                   ARROWOOD, J., concurring in part, dissenting in part



error. The State concedes this error. I would vacate the SBM order without prejudice

to the State’s ability to file a subsequent SBM application.




                                            4
