in the Court of Appeals 5 June 2019.
by defendant from order entered 4 April 2018 by Judge Anna
Mills Wagoner in Rowan County Nos. 15 CRS 54421-15 CRS 54422
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Sonya Calloway-Durham, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Heidi Reiner, for defendant.
Jesse James Tucker appeals the trial court's imposition
of lifetime satellite-based monitoring. We vacate the trial
court's order for the reasons discussed in State v.
Griffin, ___ N.C.App. ___, 818 S.E.2d 336 (2018).
Griffin, this Court held that the Fourth Amendment
prohibits a trial court from imposing lifetime
satellite-based monitoring on a convicted sex offender unless
the State presents evidence that this type of monitoring
"is effective to protect the public from sex
offenders." Id. at ___, 818 S.E.2d at 337. The
Court further held that the efficacy of satellite-based
monitoring is not self-evident-that is, that the State cannot
rely solely on the common-sense assumption "that an
offender's awareness his location is being monitored does
in fact deter him from committing additional offenses."
Id. at ___, 818 S.E.2d at 341. Likewise, the Court
held that the State cannot rely on "decisions from other
jurisdictions stating that [satellite-based monitoring]
curtails sex offender recidivism." Id. Simply
put, after Griffin, trial courts cannot impose
satellite-based monitoring unless the State presents actual
evidence-such as "empirical or statistical
reports"-establishing that lifetime satellite-based
monitoring prevents recidivism. Id.
the State did not present the sort of evidence required by
Griffin-likely because the hearing in this case
occurred before this Court decided Griffin.
Nevertheless, Griffin is controlling precedent on
direct appeal. Although the Supreme Court stayed the judgment
of this Court in Griffin, it did not stay our
mandate. See State v. Griffin, ___ N.C. ___, 817
S.E.2d 210 (2018). Moreover, Griffin largely relies
on the reasoning of State v. Grady, ___ N.C.App.
___, ___, 817 S.E.2d 18, 27-28 (2018) (Grady II),
which the Supreme Court has not stayed. Thus, we are bound by
the Griffin holding in this appeal. See In re
Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989). We therefore vacate the imposition of lifetime
satellite-based monitoring in this case.
that there is disagreement amongst the judges of this Court
concerning the holdings of Griffin and its companion
cases, and that review of several of those cases is pending
in our Supreme Court. See, e.g.,
Griffin, ___ N.C. App at ___, 818 S.E.2d at 342-44
(Bryant, J, dissenting); Grady, ___ NC App at ___,
817 S.E.2d at 28-31 (Bryant, J, dissenting); State v
Westbrook, NC App, 817 S.E.2d 794, 2018 WL 4200974, at *4-7
(2018) (Dillon, J dissenting) (unpublished); State v
White, ___ NC App, ___. 817 S.E.2d 795, 2018 WL 4200979,
at *9 (2018) (Dillon, J, dissenting) (unpublished); State v
Gordon, ___ NC App. ___, ___, 820 S.E.2d 339, 349-50 (2018)
(Dietz, J, concurring in the judgment). Thus, although we
reject the State's arguments as squarely precluded by
Griffin and Grady II, we observe that the
State has preserved those arguments for further review in the
BERGER, Judge, dissenting in separate opinion.
Court is compelled by Griffin to vacate the trial
court's order of lifetime satellite-based monitoring in
this case. In re Civil Penalty, 324 N.C. 373, 384,
379 S.E.2d 30, 37 (1989). "Our panel is following
[Griffin], as we should. However, I write separately
to dissent because I believe [Griffin] is wrongfully
decided[.]" Watson v. Joyner-Watson, ___ N.C.
___, ___, 823 S.E.2d 122, 126, (Dillon, J.,
Defendant entered an Alford plea to two counts of
indecent liberties with a child. The State's factual
recitation during the plea tended to show that there were two
separate victims in this case, one was a seven year old girl
and the other a nine year old girl. Defendant exposed his
penis to the seven year old victim and instructed her to
touch his penis. Defendant also pulled down the seven year
old's pants and underwear and performed oral sex on the
victim. As for the nine year old victim, the State's
factual showing established that Defendant rubbed ...