in the Court of Appeals 17 November 2016.
by defendant from judgments entered 3 December 2015 by Judge
Michael D. Duncan in Watauga County Nos. 14 CRS 001235,
050591, 051139 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Anita LeVeauz, for the State.
& Petersen, P.A., by James R. Glover, for
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.
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.
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
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.
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
lies in the Court pursuant to N.C. Gen. Stat. § 7A-27(b)
(2015) and N.C. Gen. Stat. § 15A-1444(a) (2015).
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
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
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.
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
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.
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.