State v. Thompson, 273 N.C. App. 686 (Oct. 6, 2020)

The defendant was convicted at trial of numerous sex offenses against minor children, including statutory sex offense, sexual activity by substitute parent, and sale of controlled substances to minors in Cleveland County. He was sentenced to a minimum of 600 months and ordered to enroll in satellite-based monitoring (“SBM”) for life upon release based on the convictions relating to one victim, with an additional 10 year term of SBM for the other victim. The defendant properly appealed his convictions but failed to give notice of appeal of the SBM orders. In its discretion, the Court of Appeals granted his petition for writ of certiorari to review that issue.

(1) A therapist for one of the minor victims testified as an expert in childhood and teen trauma for the State at trial. She testified that the child had post-traumatic stress disorder (“PTSD”) and major depression and relayed to the jury disclosures by the victim of instances of sexual abuse by the defendant. This testimony was offered for corroborative purposes. The defendant did not object, and no limiting instruction about the testimony was given to the jury. The court therefore reviewed for plain error only. The North Carolina Supreme Court has held that it is improper to admit evidence of a PTSD diagnosis for substantive purposes. See State v. Hall, 330 N.C. 808, 821 (1992). However, such testimony may be admitted to corroborate substantive evidence, to rebut defense evidence of consent, or to explain why disclosure of the crime was delayed. When such evidence is admitted, the trial court should provide a limiting instruction to the jury regarding the use of the testimony. Failure to give the limiting instruction is not error, however, if the defendant fails to request one. Here, the testimony was properly admitted for corroborative purposes. Further, “even if a limiting instruction were required in the absence of a specific request by defendant, defendant was not prejudiced by the omission such that it would amount to fundamental error.” Thompson Slip op. at 8. There was therefore no plain error in the admission of the therapist’s diagnosis of PTSD.

(2) The defendant failed to raise a Fourth Amendment objection during the SBM hearing. However, because the State raised the constitutional issue and it was considered by the trial court in its ruling, the issue was preserved for appellate review. (2a) Here, the defendant’s enrollment in SBM would not occur until at least the expiration of his minimum term of imprisonment, at least 50 years from the time of judgment. As in State v. Gordon, 840 S.E.2d 907 (2020), “it is therefore difficult to assess the reasonableness of subjecting him to SBM given the unknown future circumstances of the program.” Thompson Slip op. at 16. Finding that the State failed to meet its burden to show that the lifetime SBM search was reasonable under the Fourth Amendment, the trial court’s order of lifetime SBM was reversed.

(2b) The second SBM order requiring the defendant to enroll in SBM for a term of 10 years was proper. The evidence supported the finding that the offenses involved the sexual abuse of a minor child, and the trial court properly considered the relationship between the victim and defendant, the offenses, and the age of the victims. The defendant’s risk assessment indicated he was “low-risk,” but the trial judge was free to make its own determination of the defendant’s risk based on the totality of evidence, as it did here. Furthermore, “ten years is not ‘significantly burdensome and lengthy,’ especially given that the defendant will be subject to post-release supervision for half of that time period.” Id. at 20. The trial court committed a mere clerical error in failing to make a finding that the defendant required the highest possible level of supervision. This SBM order was therefore affirmed and remanded for correction of the clerical error.

Judge Berger concurred with the majority opinion as to the criminal judgment and concurred in result with the SBM portion of the opinion, joined by Judge Dietz. These judges would have found that the precedent by which the majority found the defendant’s Fourth Amendment challenge preserved (based on the State’s act of raising the constitutional issue) was inconsistent with the preservation requirements under the Rules of Appellate Procedure. However, given the uncertain and evolving nature of SBM case law in the State, as well as the fact that the SBM order here was issued before Gordon was decided, the concurring judges would have found that the defendant could not have preserved his constitutional arguments [and presumably would have found the issue preserved on that basis, rather than the precedent relied upon by the majority.]