              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-527

                                  Filed: 2 May 2017

Watauga County, Nos. 14 CRS 001235, 050591, 051139

STATE OF NORTH CAROLINA

             v.

ROBERT HAROLD JOHNSON


      Appeal by defendant from judgments entered 3 December 2015 by Judge

Michael D. Duncan in Watauga County Superior Court. Heard in the Court of

Appeals 17 November 2016.


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

      Glover & Petersen, P.A., 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
                                  STATE V. JOHNSON

                                  Opinion of the Court



      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.



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                                   Opinion of the Court



                                    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.




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                                   Opinion of the Court



      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



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                                    Opinion of the Court



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



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                                  Opinion of the Court



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.




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                                  STATE V. JOHNSON

                                   Opinion of the Court



      “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.



                                          -7-
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                                   Opinion of the Court



      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 that “the indecent liberties statute simply forbids ‘any immoral, improper,

or indecent liberties.’” Id. at 374, 627 S.E.2d at 612 (quoting N.C. Gen. Stat. § 14-

202.1(a)(1) (2005)). “Thus, even if some jurors found that the defendant engaged in

one kind of sexual misconduct, while others found that he engaged in another, the

jury as a whole would unanimously find that there occurred sexual conduct within

the ambit of any immoral, improper, or indecent liberties.” Id. (citations and internal

quotation marks omitted).     Consequently, the Court held “a defendant may be

unanimously convicted of indecent liberties even if: (1) the jurors considered a higher

number of incidents of immoral or indecent behavior than the number of counts

charged, and (2) the indictments lacked specific details to identify the specific

incidents.” Id. at 375, 627 S.E.2d at 613.

      Subsequent to Lawrence, this Court has applied the same rationale to overrule

arguments regarding jury unanimity on sexual offense charges where “‘the jury was

instructed on all issues, including unanimity; [and] separate verdict sheets were

submitted to the jury for each charge.’” State v. Brigman, 178 N.C. App. 78, 93-94,

632 S.E.2d 498, 508 (quoting Lawrence, 360 N.C. at 376, 627 S.E.2d at 613), appeal

dismissed and disc. review denied¸360 N.C. 650, 636 S.E.2d 813 (2006); see State v.



                                          -8-
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                                  Opinion of the Court



Wallace, 179 N.C. App. 710, 719-20, 635 S.E.2d 455, 462-63 (2006), appeal dismissed

and disc. review denied, 361 N.C. 436, 649 S.E.2d 896 (2007); State v. Burgess, 181

N.C. App. 27, 37-38, 639 S.E.2d 68, 75-76 (2007), cert. denied, 365 N.C. 337, 717

S.E.2d 384-85 (2011). This Court has also explained that

             [t]he reasoning our Supreme Court set forth in Lawrence
             may be imputed to sexual offense charges because: (1) N.C.
             Gen. Stat. § 15-144.2(a) authorizes, for sexual offense, an
             abbreviated form of indictment which omits allegations of
             the particular elements that distinguish first-degree and
             second-degree sexual offense[;] and (2) if a defendant
             wishes additional information in the nature of the specific
             “sexual act” with which he stands charged, he may move
             for a bill of particulars.

Wallace, 179 N.C. App. at 720, 635 S.E.2d at 462-63 (2006) (citations omitted).

      Based on Lawrence and its progeny, we overrule Defendant’s arguments

regarding jury unanimity in this case, even though the jury may have considered a

greater number of incidents than those charged in the indictments. Here, Defendant

was charged with three counts of sexual offense with a child and three counts of

sexual activity by a substitute parent in three separate indictments alleging one

count of each offense. The jury instructions and the verdict sheets distinguished

between the three sets of charges based upon the different locations where the

offenses allegedly occurred and the State presented evidence of sexual offenses in

each of the locations identified. Jury unanimity was shown as there was evidence of

fellatio inside the house both at the computer table and in the bathroom, or that there



                                         -9-
                                  STATE V. JOHNSON

                                   Opinion of the Court



was evidence of fellatio outside the house but on the property both inside a car and

in the driveway.

      Moreover, this Court has identified the following factors to consider when

determining whether a defendant has been unanimously convicted by a jury:

             (1) whether defendant raised an objection at trial regarding
             unanimity; (2) whether the jury was instructed on all
             issues, including unanimity; (3) whether separate verdict
             sheets were submitted to the jury for each charge; (4) the
             length of time the jury deliberated and reached a decision
             on all counts submitted to it; (5) whether the record
             reflected any confusion or questions as to jurors’ duty in the
             trial; and (6) whether, if polled, each juror individually
             affirmed that he or she had found defendant guilty in each
             individual case file number.

State v. Pettis, 186 N.C. App. 116, 123, 651 S.E.2d 231, 235 (2007). In the present

case, although Defendant initially objected to the language proposed to differentiate

the charges at the charge conference, Defendant did not object to the instructions

issued to the jury or to the verdict sheets provided to the jury. The trial court

instructed the jury on its duty of unanimity and the jury returned its guilty verdicts

after approximately twenty minutes of deliberation. There is no indication in the

record that the jury was confused, and the jurors confirmed their guilty verdicts upon

being polled in open court.

      Under the circumstances in this case, there is no issue concerning unanimity

of the jury verdicts. Thus, the trial court did not err in entering judgments for sexual

offense with a child and sexual activity by a substitute parent in the case numbers


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                                   Opinion of the Court



14 CRS 1235 and 14 CRS 50591. Similarly, the trial court did not err in entering the

third judgment in 14 CRS 51139, which Defendant does not challenge on appeal.

                            V. Registration Requirement

      Defendant also challenges the trial court’s order that he register as a sex

offender for life upon his release from prison. Upon review, we reverse the trial

court’s order concerning sex offender registration and remand to the trial court.

      Our General Assembly has established registration programs to assist law

enforcement in the protection of the public from persons who are convicted of sex

offenses or of certain other offenses committed against minors. N.C. Gen. Stat. § 14-

208.5 (2015); see also N.C. Gen. Stat. § 14-208.6A (2015). To that end, a person who

has a “reportable conviction” is required to register for a period of at least 30 years.

N.C. Gen. Stat. § 14-208.7 (2015). A person who is a recidivist, who is convicted of an

aggravated offense, or who is classified as a sexually violent predator is required to

maintain registration for life. N.C. Gen. Stat. § 14-208.23 (2015).

      In this case, the orders for lifetime registration were based on the court’s

findings that Defendant has been convicted of reportable convictions and that the

offenses of conviction are aggravated offenses. Defendant did not contest either of

these findings below. While Defendant acknowledges on appeal that he was convicted

of reportable convictions and is therefore required to register as a sex offender,

Defendant now contends the court erred in ordering registration for life based upon



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                                  STATE V. JOHNSON

                                   Opinion of the Court



findings he was convicted of aggravated offenses. Defendant argues on appeal that

neither sexual offense with a child nor sexual activity by a substitute parent are listed

as aggravated offenses in the statute. We agree.

                                A. Standard of Review

      Despite Defendant’s failure to object below, this issue is preserved for appeal.

As stated above, N.C. Gen. Stat. § 14-208.23 provides that “[a] person who is a

recidivist, who is convicted of an aggravated offense, or who is classified as a sexually

violent predator shall maintain registration for the person’s life.” (emphasis

supplied). “[W]hen a trial court acts contrary to a statutory mandate and a defendant

is prejudiced thereby, the right to appeal the court’s action is preserved,

notwithstanding defendant’s failure to object at trial.” State v. Ashe, 314 N.C. 28, 39,

331 S.E.2d 652, 659 (1985). Defendant alleges a violation of a statutory mandate,

and “[a]lleged statutory errors are questions of law and as such, are reviewed de

novo.” State v. Mackey, 209 N.C. App. 116, 120, 708 S.E.2d 719, 721 (2011) (internal

citations omitted).

                                      B. Analysis

      For purposes of sex offender registration and SBM requirements,

             “[a]ggravated offense” means any criminal offense that
             includes either of the following: (i) engaging in a sexual act
             involving vaginal, anal, or oral penetration with a victim of
             any age through the use of force or the threat of serious
             violence; or (ii) engaging in a sexual act involving vaginal,
             anal, or oral penetration with a victim who is less than 12


                                          - 12 -
                                   STATE V. JOHNSON

                                   Opinion of the Court



             years old.

N.C. Gen. Stat. § 14-208.6(1a) (2015).

      Defendant asserts “the trial court ‘is only to consider the elements of the

offense of which a defendant was convicted and is not to consider the underlying

factual scenario giving rise to the conviction’ when determining whether a

defendant’s ‘conviction offense [i]s an aggravated offense. . . .’” State v. Treadway, 208

N.C. App. 286, 302, 702 S.E.2d 335, 348 (2010) (quoting State v. Davison, 201 N.C.

App. 354, 364, 689 S.E.2d 510, 517 (2009). “In other words, the elements of the

conviction offense must ‘fit within’ the statutory definition of ‘aggravated offense.’”

State v. Boyett, 224 N.C. App. 102, 116, 735 S.E.2d 371, 380 (2012) (citing State v.

Singleton, 201 N.C. App. 620, 630, 689 S.E.2d 562, 569, disc. review improvidently

allowed, 364 N.C. 418, 700 S.E.2d 226 (2010)).            Thus, our review is limited to

comparing the statutory definition of “aggravated offense” to the elements of the

convicted offenses.

      First, Defendant was charged and convicted on three counts of sexual offense

with a child under N.C. Gen. Stat. § 14-27.4A(a). At the time of the offenses, that

statute provided that “[a] person is guilty of sexual offense with a child if the person

is at least 18 years of age and engages in a sexual act with a victim who is a child

under the age of 13 years.” N.C. Gen. Stat. § 14-27.4A (2013). Thus, the elements of

sexual offense with a child are (1) a sexual act, (2) with a victim under the age of 13

years, (3) by a person who is at least 18 years old.

                                          - 13 -
                                  STATE V. JOHNSON

                                   Opinion of the Court



      Second, Defendant was charged and convicted on three counts of sexual

activity by a substitute parent under N.C. Gen. Stat. § 14-27.7(a). At the time of the

offenses, that statute provided that “[i]f a defendant who has assumed the position of

a parent in the home of a minor victim engages in vaginal intercourse or a sexual act

with a victim who is a minor residing in the home . . . the defendant is guilty of a

Class E felony. Consent is not a defense to a charge under this section.” N.C. Gen.

Stat. § 14-27.7(a) (2013). Thus, the elements of sexual activity by a substitute parent

are (1) vaginal intercourse or a sexual act, (2) with a minor victim residing in a home,

(3) by a person who has assumed the position of a parent in the minor victim’s home.

      When comparing the elements of the convicted offenses to the elements in the

definition of an aggravated offense, the elements do not precisely align.

      We begin our analysis with part two of the definition of aggravated offense,

which the State does not address. Under part two, an offense can only be found to be

an aggravated offense if it includes “engaging in a sexual act involving vaginal, anal,

or oral penetration with a victim who is less than 12 years old.” N.C. Gen. Stat. § 14-

208.6(1a)(ii). Whereas this second category of aggravating offense requires a victim

to be under the age of 12, sexual offense with a child requires proof that the victim is

under the age of 13 and sexual activity by a substitute parent requires proof that the

victim is a minor—that is under the age of 18. Because the age elements differ and

neither convicted offense requires proof that a victim is under the age of 12,



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                                   STATE V. JOHNSON

                                   Opinion of the Court



Defendant’s convicted offenses are not aggravated offenses under the second part of

the aggravated offense definition. See Treadway, 208 N.C. App. at 303, 702 S.E.2d at

348 (holding “first degree sexual offense pursuant to N.C. Gen. Stat. § 14-27.4(a)(1)

is not an aggravated offense[]” because, “[c]learly, a child under the age of 13 is not

necessarily also a child less than 12 years old.”).

      Although the State does not address the second part of the definition, the State

contends both sexual offense with a child and sexual activity by a substitute parent

are aggravated offenses under part one of N.C. Gen. Stat. § 14-208.6(1a). Like part

two of the definition, part one requires a sexual act involving penetration. However,

instead of an age element, part one of the aggravated offense definition requires that

the “sexual act involving vaginal, anal, or oral penetration” be perpetrated “through

the use of force or the threat of serious violence[.]” N.C. Gen. Stat. § 14-208.6(1a)(i).

      On appeal, the State asserts that the sexual act in this case involved oral

penetration through the use of force. The State contends the elements of both sexual

offense with a child and sexual activity by a substitute parent fall within the elements

required for an aggravated offenses under N.C. Gen. Stat. § 14-208.6(1a)(i).           In

support of its argument, the State cites State v. Sprouse, 217 N.C. App. 230, 719

S.E.2d 234 (2011), disc. review denied, 365 N.C. 552, 722 S.E.2d 787 (2012), for the

proposition that a sexual offense against a minor necessarily involves the use of force

or the threat of serious violence, because a minor is incapable of consent as a matter



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                                   Opinion of the Court



of law. Besides asserting that the specific facts in this case show oral penetration,

facts which the State acknowledges are not considered in the determination of

whether a convicted offense is an aggravated offense, the State does not address

whether the convicted offenses require proof of penetration.

      In Sprouse, the defendant was convicted on multiple counts of statutory rape,

statutory sex offense, indecent liberties with a child, and sexual activity by a

substitute parent, and ordered to enroll in lifetime SBM for all offenses. Id. at 235,

719 S.E.2d at 239. Among the issues on appeal, the defendant argued the lifetime

SBM orders were in error because the convictions were not for aggravated offenses.

Id. at 239, 719 S.E.2d 241. This Court noted “no meaningful distinction between

[first-degree rape of a child and statutory rape] for purposes of lifetime SBM” and,

therefore, affirmed the orders of lifetime SBM based on the defendant’s statutory rape

convictions. Id. at 240-41, 719 S.E.2d at 242. This Court, however, reversed the

orders of lifetime SBM based upon the convictions for statutory sex offense, sexual

activity by a substitute parent, and indecent liberties with a child because “they do

not meet the definition of an aggravated offense.” Id. at 241, 719 S.E.2d at 242.

      In Sprouse, this Court relied upon State v. Clark, which held that statutory

rape was an aggravated offense because it involves penetration and the use of force

or the threat of serious violence. State v. Clark, 211 N.C. App. 60, 76, 714 S.E.2d 754,

764 (2011), disc. review denied, __ N.C. __, 722 S.E.2d 595 (2012). This Court noted



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                                   Opinion of the Court



first-degree rape of a child is an aggravated offense because it requires proof of

vaginal intercourse and because rape of a child under the age of 13 necessarily

involves the use of force or the threat of serious violence because the child in

inherently incapable of consenting. Id. at 72-73, 714 S.E.2d at 763.

      The present case is distinguishable in that the offenses of which Defendant

was convicted offenses were not rape offenses. The convicted offenses in this case

were sexual offense with a child and sexual activity by substitute parent, both of

which only require a “sexual act.” For purposes of both offenses, a “‘[s]exual act’

means cunnilingus, fellatio, analingus, or anal intercourse, but does not include

vaginal intercourse. Sexual act also means the penetration, however slight, by any

object into the genital or anal opening of another person’s body . . . .” N.C. Gen. Stat.

§ 14-27.1 (2013). Not all “sexual acts” involve the element of penetration required to

constitute an aggravated offense. In Clark, this Court differentiated first degree rape

from other offenses on the basis that

             obtaining a first degree rape conviction pursuant to N.C.
             Gen. Stat. § 14-27.2(a)(1) requires proof that a defendant
             “engage[d] in vaginal intercourse” with his or her victim,
             as compared to some other form of inappropriate contact.
             N.C. Gen. Stat. § 14-27.2(a)(1). In other words, anyone
             found guilty of first degree rape in violation of N.C. Gen.
             Stat. § 14-27.2(a)(1) has necessarily “[engaged] in a sexual
             act involving vaginal, anal, or oral penetration,” N.C. Gen.
             Stat. § 14-208.6(1a), based solely on an analysis of the
             elements of the conviction offense.




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                                   Opinion of the Court



Clark, 211 N.C. App. at 73, 714 S.E.2d at 763. The same was true in Sprouse for

statutory rape. Yet, this Court specifically noted in Clark that

             [t]he same is not necessarily true with respect to a
             conviction for first degree sexual offense in violation of N.C.
             Gen. Stat. § 14-27.4(a)(1), since an individual can be
             convicted of first degree sexual offense on the basis of
             cunnilingus, which does not require proof of penetration.
             State v. Ludlum, 303 N.C. 666, 669, 281 S.E.2d 159, 161
             (1981) (stating that “[w]e do not agree, however, that
             penetration is required before cunnilingus, as that word is
             used in the statute, can occur”).

Id. at 73 n. 4, 714 S.E.2d at 763 n. 4; see also State v. Hoover, 89 N.C. App. 199, 208,

365 S.E.2d 920, 926 (“Proof of a “sexual act” under G.S. 14-27.7 does not require, but

may involve, penetration.”), cert. denied, 323 N.C. 177, 373 S.E.2d 118 (1988).

      Because the elements of the convicted offenses in this case require only a

sexual act, which may or may not involve penetration, neither sexual offense with a

child pursuant to N.C. Gen. Stat. § 14-27.4A nor sexual offense by a substitute parent

pursuant to N.C. Gen. Stat. § 14-27.7(a) necessarily involves the penetration

statutorily required to constitute an aggravated offense under N.C. Gen. Stat. § 14-

208.6(1a). We reverse the registration order and remand to the trial court for entry

of a registration order based upon proper findings.

                                IV. SBM Requirement

      The trial court also ordered Defendant to enroll in SBM for the remainder of

his life upon his release from prison. In the final issue on appeal, Defendant contends

the trial court erred in ordering lifetime SBM without a determination that the

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                                   Opinion of the Court



program was a reasonable search as mandated under Grady v. North Carolina, __

U.S. __, 191 L. Ed. 2d 459 (2015). The State concedes the issue and we agree.

       The findings that Defendant’s convictions require lifetime registration for

aggravated offenses were in error. Therefore, the order for lifetime SBM must be

supported on other grounds. Defendant acknowledges the court correctly found that

he had been convicted of sex offense with a child and that lifetime SBM is mandated

by N.C. Gen. Stat. § 14-27.4A for a conviction of sex offense with a child. That statute

provides that

             (b) A person convicted of [sexual offense with a child] is
             guilty of a Class B1 felony and shall be sentenced pursuant
             to Article 81B of Chapter 15A of the General Statutes,
             except that in no case shall the person receive an active
             punishment of less than 300 months, and except as
             provided in subsection (c) of this section. Following the
             termination of active punishment, the person shall be
             enrolled in satellite-based monitoring for life pursuant to
             Part 5 of Article 27A of Chapter 14 of the General Statutes.

N.C. Gen. Stat. § 14-27.4A(b) (emphasis added).

       However, in Grady, the Supreme Court of the United States held that North

Carolina’s SBM program constitutes a search within the meaning of the Fourth

Amendment and must be reasonable based on the totality of the circumstances,

including the nature and purpose of the search and the extent to which the search

intrudes upon reasonable privacy expectations. Grady, __ U.S. at __, 191 L. Ed. 2d at

462.   The Supreme Court then remanded the matter for a hearing on the

reasonableness of SBM in the case. Id.

                                          - 19 -
                                  STATE V. JOHNSON

                                   Opinion of the Court



       Under the mandate of Grady, in State v. Blue, __ N.C. App. __, __, 783 S.E.2d

524, 527 (2016), this Court reversed a SBM order after “the trial court simply

acknowledged that SBM constitutes a search and summarily concluded it is

reasonable[.]” This Court held the trial court failed to follow the mandate in Grady

to determine the reasonableness of the SBM program based upon the totality of the

circumstances and remanded the matter to the trial court for a new hearing. Id. This

Court also held the State bears the burden of proving SBM and the length thereof is

reasonable. Id.

       In the present case, Defendant and the State agree that no evidence was

presented to demonstrate the reasonableness of lifetime SBM. As a result, we reverse

the SBM order and remand for the reasonableness determination mandated by

Grady. See Grady, __ U.S. at __, 191 L. Ed. 2d at 462.

                                   VII. Conclusion

       We hold the jury unanimously convicted Defendant on three counts each of

sexual offense with a child and sexual activity by a substitute parent. Defendant

received a fair trial free from error in the convictions or entry of those judgments.

       We reverse the orders for lifetime registration and lifetime SBM and remand

to the trial court for further proceedings and orders consistent with the law. See id.

It is so ordered.

       NO ERROR IN PART; REVERSED IN PART AND REMANDED.



                                          - 20 -
                        STATE V. JOHNSON

                         Opinion of the Court



Judges McCULLOUGH and DILLON concur.

Judge McCULLOUGH concurred in this opinion prior to 24 April 2017.




                                - 21 -
