IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-304

No. COA20-597

Filed 6 July 2021

Alamance County, Nos. 18 CRS 52424, 52553, 52554; 19 CRS 268

STATE OF NORTH CAROLINA

v.

JAMES DWAYNE BARNES

Appeal by defendant from order entered 25 October 2019 by Judge D. Thomas 

Lambeth, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 

9 June 2021.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Brenda 

Menard, for the State.

Mark Montgomery for the defendant.

ARROWOOD, Judge.

¶ 1 James Dwayne Barnes (“defendant”) appeals by writ of certiorari from the trial 

court’s order imposing lifetime satellite-based monitoring (“SBM”). Defendant 

contends the order should be vacated because “[t]here was no hearing of any kind, no 

argument by the State, nothing to support the trial court’s order.” For the following 

reasons, we vacate the order without prejudice to the State’s ability to file a 

subsequent SBM application.
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Opinion of the Court

I. Background

¶ 2 On 2 July 2018, defendant was indicted for assault by strangulation, firstdegree rape, first-degree kidnapping, two counts of first-degree sexual offense, and 

attaining habitual offender status. The matter came on for trial at the 

21 October 2019 criminal session of Alamance County Superior Court, the Honorable 

D. Thomas Lambeth, Jr., presiding. The State’s evidence tended to show as follows.

¶ 3 In May 2018, defendant, who is white, was dating “Cindy,”

1 also white. Cindy 

was engaging in prostitution to earn “[m]oney for cocaine[,]” as well as to provide 

defendant to “do whatever we had to live. Live by it and buy cigarettes and dope.” 

On or around 7 May 2018, Cindy prostituted herself to an African American man,

“Brian.” When defendant discovered Cindy in bed with Brian, defendant became 

angry and started beating Cindy, eventually choking Cindy until she lost 

consciousness. After Cindy regained consciousness, defendant anally raped Cindy 

and continued to beat her. Cindy later fell asleep, but defendant periodically woke 

her and beat her, and also forced her to perform oral sex.

¶ 4 The following morning, defendant and Cindy went to a Wal-Mart to panhandle. 

Officer Justin Jolly (“Officer Jolly”) of the Burlington Police Department received a 

call about Cindy’s apparent injuries and went to the Wal-Mart to investigate. After 

1 The parties agreed to use this pseudonym in their briefs.
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Opinion of the Court

interviewing defendant and Cindy separately, Officer Jolly arrested defendant.

¶ 5 On 8 May 2018, Cindy was interviewed by Sharon Staley (“Ms. Staley”), a 

forensic nurse, and Lindsey Strickland (“Ms. Strickland”), a forensic nurse examiner. 

Both Ms. Staley and Ms. Strickland testified that Cindy’s physical injuries were 

consistent with her account. Cindy was also interviewed by Detective Kevin King

(“Detective King”) with the Burlington Police Department, and Justin Parks (“Mr. 

Parks”), a special victims investigator with the Iredell County Sheriff’s Office. 

Recordings of Cindy’s interviews with Detective King and Mr. Parks were played for 

the jury.

¶ 6 On 25 October 2019, a jury found defendant guilty of assault by strangulation, 

first-degree rape, first-degree kidnapping, one count of first-degree sexual offense, 

and of being a habitual offender. The trial court consolidated the convictions and 

imposed a sentence of 420 to 564 months imprisonment. The trial court determined 

that defendant had committed a sexually violent offense and an aggravated offense, 

and accordingly ordered defendant to enroll in SBM for life.

¶ 7 Defendant gave oral notice of appeal in open court on 25 October 2019. 

Defendant filed petition for writ of certiorari on 9 November 2020.

II. Discussion

¶ 8 Defendant contends the trial court erred in ordering lifetime SBM where the 

trial court did not conduct a hearing on whether lifetime SBM was reasonable and 
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Opinion of the Court

the State did not offer any evidence that lifetime SBM was reasonable. Because the 

oral notice of appeal was insufficient to confer jurisdiction on this Court, defendant 

petitions for writ of certiorari to review the merits of his appeal.

A. Appellate Jurisdiction

¶ 9 Because of the civil nature of SBM hearings, a defendant must file a written 

notice of appeal from an SBM order pursuant to Appellate Rule 3. N.C.R. App. P. 

3(a); State v. Brooks, 204 N.C. App. 193, 194-95, 693 S.E.2d 204, 206 (2010) (holding 

that oral notice of appeal from an SBM order does not confer jurisdiction on this 

Court). This Court, however, is authorized to issue writs of certiorari “to permit 

review of the judgments and orders of trial tribunals when the right to prosecute an 

appeal has been lost by failure to take timely action[.]” N.C.R. App. P. 21(a)(1). In 

the present case, because defendant’s oral notice of appeal was insufficient to confer 

jurisdiction on this Court under Rule 3, defendant filed a petition for a writ of 

certiorari on 9 November 2020 seeking review of the order imposing lifetime 

enrollment in SBM. In our discretion, we allow defendant’s petition for writ of 

certiorari.

¶ 10 Defendant asserts that the trial court erred in ordering that defendant enroll 

in lifetime SBM upon his release from prison because the State failed to meet its 

burden of proving the imposition of lifetime SBM is a reasonable search under the 

Fourth Amendment. See Grady v. North Carolina (“Grady I”), 575 U.S. 306, 310, 135 
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Opinion of the Court

191 L. Ed. 2d 459, 462 (2015). However, defendant did not raise any constitutional 

challenge or otherwise preserve this constitutional claim at any point during his 

sentencing hearing. Pursuant to Rule 10 of the North Carolina Appellate Rules of 

Procedure, “to preserve an issue for appellate review, a party must have presented to 

the trial court a timely request, objection, or motion, stating the specific grounds for 

the ruling the party desired the court to make if the specific grounds were not 

apparent from the context.” N.C.R. App. P. 10(a)(1). Accordingly, because defendant 

did not object to the imposition of lifetime SBM on constitutional grounds, he has 

waived the ability to argue it on appeal. State v. Bursell (“Bursell II”), 372 N.C. 196, 

200, 827 S.E.2d 302, 305 (2019).

¶ 11 Defendant requests that this Court exercise its discretion to invoke Rule 2 of 

the Rules of Appellate Procedure to reach the merits. 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 these rules in a case 

pending before it . . . upon its own initiative[.]” N.C.R. App. P. 2. An appellate court’s 

decision to invoke Rule 2 and suspend the appellate rules is always an exercise of 

discretion. Bursell II, 372 N.C. at 201, 827 S.E.2d at 306. “Rule 2 relates to the 

residual power of our appellate courts to consider, in exceptional circumstances, 

significant issues 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 
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N.C. 599, 603, 799 S.E.2d 600, 602 (2017) (emphasis in original) (citation omitted). 

The determination of whether a particular case is an “instance” 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. (emphasis in original) (quoting State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 

205 (2007)).

¶ 12 In Bursell II, our Supreme Court affirmed this Court’s decision to invoke Rule 

2 and review the unpreserved constitutional issue. Bursell II, 372 N.C. at 197, 827 

S.E.2d at 303 (affirming State v. Bursell (“Bursell I”) 258 N.C. App. 527, 813 S.E.2d 

463 (2018)). First noting that the Fourth Amendment right implicated in such cases 

is a substantial right, the Bursell II Court affirmed this Court’s suspension of the 

appellate rules after examining “the specific circumstances of [the] individual case[ ]

and parties,” including “defendant’s young age, the particular factual bases 

underlying his pleas, and the nature of those offenses, combined with the State’s and 

the trial court’s failures to follow well-established precedent in applying for and 

imposing SBM, and the State’s concession of reversible Grady error.” Id. at 201, 827 

S.E.2d at 306.
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Opinion of the Court

¶ 13 In State v. Ricks, 271 N.C. App. 348, 843 S.E.2d 652, writ allowed, 375 N.C. 

281, 842 S.E.2d 88 (2020),

2 this Court examined the State’s and trial court’s failure 

to follow well-established precedent in applying for and imposing SBM. The Court 

first discussed Bursell I, in which “the trial court and the State had the benefit of our 

Court’s precedent in State v. Blue, 246 N.C. App. 259, 783 S.E.2d 524 (2016), and 

State v. Morris, 246 N.C. App. 349, 783 S.E.2d 528 (2016), which ‘made clear that a 

case for SBM is the State’s to make[.]’ ” Ricks, 271 N.C. App. at 360, 843 S.E.2d at

663 (citing Bursell I, 258 N.C. App. at 533, 813 S.E.2d at 467) (internal quotation 

marks omitted). In Ricks, “the State and the trial court . . . had the benefit of even 

more guidance regarding the State’s burden than in Bursell[,]” which “make clear 

that the trial court must conduct a hearing to determine the constitutionality of 

ordering a defendant to enroll in the SBM program, and that the State bears the 

burden of proving the reasonableness of the search. Id. at 360-61, 843 S.E.2d at 663 

(citing State v. Greene, 255 N.C. App. 780, 806 S.E.2d 343 (2017), State v. Grady

(“Grady II”), 259 N.C. App. 664, 817 S.E.2d 18 (2018), aff’d as modified, 372 N.C. 509, 

831 S.E.2d 542 (2019) (“Grady III”), State v. Griffin, 260 N.C. App. 629, 818 S.E.2d 

2 We note that Ricks has been stayed by our Supreme Court and is of questionable 

precedential value as a result. However, because the invocation of Rule 2 is a discretionary 

decision, we nonetheless find its reasoning persuasive.
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Opinion of the Court

336 (2018), and State v. Gordon (“Gordon I”), 261 N.C. App. 247, 820 S.E.2d 339 

(2018)).

¶ 14 Here, as in Ricks, the State and trial court had the benefit of even more 

guidance than in Bursell I. The multiple cases referenced above clearly state a Grady 

hearing must be conducted and the State must present any evidence regarding the 

reasonableness of the search. Although the trial court in this case had the benefit of 

the precedent referenced above, it did not conduct a Grady hearing and the State 

failed to offer any evidence regarding the reasonableness of the search. For these 

reasons, we exercise our discretion and invoke Rule 2 to reach the merits of 

defendant’s appeal.

B. Lifetime SBM

¶ 15 Defendant contends the trial court erred in imposing lifetime SBM without 

first conducting a hearing to “consider whether the warrantless, suspicionless search 

here is reasonable when its intrusion on the individual’s Fourth Amendment 

interests is balanced against its promotion of legitimate governmental interests.” 

Grady III, 372 N.C. at 527, 831 S.E.2d at 557 (citation omitted). We agree.

¶ 16 As previously discussed, before imposing lifetime SBM, the trial court must 

conduct a Grady hearing and the State must present evidence regarding the 

reasonableness of the search. Determining the constitutionality of an SBM order

“depends on the totality of the circumstances, including the nature and purpose of 
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Opinion of the Court

the search and the extent to which the search intrudes upon reasonable privacy 

expectations.” Grady I, 575 U.S. at 310, 191 L. Ed. 2d at 462. In doing so, the trial 

court must balance the State’s interests in solving crimes, preventing the commission 

of sex crimes, and protecting the public, against SBM’s deep intrusion upon an 

individual’s protected Fourth Amendment interests. Grady III, 372 N.C. at 545, 831 

S.E.2d at 568. The State bears the burden of showing that the SBM program would 

further the State’s interests. Id. Additionally, when the State seeks to impose future 

SBM following a defendant’s release from prison, the State also must “demonstrat[e] 

what [a d]efendant’s threat of reoffending will be after having been incarcerated for” 

the duration of his sentence with some “individualized measure of [the d]efendant’s 

threat of reoffending.” State v. Gordon (“Gordon II”), 270 N.C. App. 468, 477-78, 840 

S.E.2d 907, 913-14 (2020) (concluding that the State did not meet its burden of 

proving the reasonableness of “a search of this magnitude approximately fifteen to 

twenty years in the future”), disc. review allowed, writ allowed, __ N.C. __, 853 S.E.2d 

148 (2021). When the State has the opportunity to present “evidence that could 

possibly support a finding necessary to impose SBM,” and fails to do so, “the 

appropriate disposition is to reverse the trial court's order rather than to vacate and 

remand the matter for re-hearing.” Griffin, 260 N.C. App. at 636, 818 S.E.2d at 342 

(citing Grady II, 259 N.C. App. at 676, 817 S.E.2d at 28).

¶ 17 In the present case, defendant’s substantial rights under the Fourth 
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Opinion of the Court

Amendment are affected, and both the State and trial court failed to follow wellestablished precedent in failing to apply for and impose SBM by conducting a Grady

hearing. In failing to conduct a Grady hearing, the trial court did not engage in the 

balancing test required by Grady III nor demonstrate the threat of reoffending as 

discussed in Gordon II. Although the State argues defendant failed to preserve his 

constitutional challenge to the lifetime SBM order, the State concedes that should we 

exercise our discretion to review defendant’s appeal, the proper result is to vacate the 

SBM order without prejudice to the State’s ability to file a subsequent SBM 

application. We note that this case is distinguishable from the holdings in Griffin 

and Grady II because the trial court did not conduct a Grady hearing, and accordingly 

the State has not lost the “one opportunity to prove that SBM is a reasonable search 

of the defendant.” Grady II, 259 N.C. App. at 676, 817 S.E.2d at 28. Because we 

exercise our discretion to review the imposition of lifetime SBM where no 

reasonableness hearing was conducted, we vacate the trial court’s order imposing 

lifetime SBM without prejudice to the State’s ability to file a subsequent SBM 

application.

III. Conclusion

¶ 18 For the forgoing reasons, we vacate the trial court’s order imposing lifetime 

SBM and remand without prejudice to the State’s ability to file a subsequent SBM 

application.
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Opinion of the Court

VACATED AND REMANDED.

Judge INMAN concurs.

Judge TYSON dissents by separate opinion.
No. COA20-597 – State v. Barnes

TYSON, Judge, dissenting.

¶ 19 Defendant’s constitutional challenge was not presented, preserved, nor ruled 

upon by the trial court. As such, his petition for writ of certiorari to obtain appellate 

jurisdiction and to seek review of the imposition of SBM in violation of the appellate 

rules is properly dismissed. I respectfully dissent from the majority opinion to allow 

defendant’s petition to review the SBM order.

I. No Jurisdiction

¶ 20 An appellant is required to file a written notice of appeal to invoke appellate 

jurisdiction on an appeal from the imposition of SBM, pursuant to North Carolina 

Rule of Appellate Procedure 3. See N.C. R. App. P. 3; State v. Brooks, 204 N.C. App. 

193, 693 S.E.2d 204 (2010).

¶ 21 Defendant, recognizing his failure to appeal, filed a petition for a writ of 

certiorari to invoke this Court’s jurisdiction and to seek review of the imposition of 

lifetime SBM. This Court, in its discretion, should grant such writs only if the 

petition “show[s] merit or that [prejudicial] error was probably committed.” State v. 

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

II. Constitutional Error Not Preserved

¶ 22 Defendant never raised any constitutional challenge before the trial court nor 

otherwise preserved his constitutional claim. When asked by the trial court if he 

wished to enter a notice of appeal, defendant’s counsel simply and orally noted that 
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TYSON, J., dissenting

“[h]e does” with no specific objection to the SBM order.

¶ 23 “[T]o preserve an issue for appellate review, a party must have presented to 

the trial court a timely request, objection, or motion, stating the specific grounds for 

the ruling the party desired the court to make if the specific grounds were not 

apparent from the context.” N.C. R. App. P. 10(a)(1).

¶ 24 It is long and well established that constitutional arguments not raised at trial 

are not preserved and are barred from review direct appeal. See State v. Valentine, 

357 N.C. 512, 525, 591 S.E.2d 846, 857 (2003) (“The failure to raise a constitutional 

issue before the trial court bars appellate review.”); see also State v. Bishop, 255 N.C. 

App. 767, 770, 805 S.E.2d 367, 370 (2017) (holding constitutional arguments are 

barred on direct appeal when not properly preserved).

III. Rule 2

¶ 25 In addition to his Rule 3 jurisdictional defect, defendant also requests this 

Court to further suspend the appellate rules and to invoke Rule 2 of the Rules of 

Appellate Procedure to reach the unpreserved merits of his claim. See N.C. R. App. 

P. 2. Invoking Rule 2 is wholly a discretionary act and it is to be used only in 

“exceptional circumstances.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. 

Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008) (quoting State v. Hart, 361 N.C. 

309, 315-17, 644 S.E.2d 201, 205-06 (2007)). 

¶ 26 “Rule 2 relates to the residual power of our appellate courts to consider, in 
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TYSON, J., dissenting

exceptional circumstances, significant issues 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 original) 

(citation omitted).

¶ 27 “[P]recedent cannot create an automatic right to review via Rule 2.” Id. at 603, 

799 S.E.2d at 603. Similarities between previous instances in which this Court has 

discretionally invoked Rule 2 are not independently sufficient to justify doing so here. 

Defendant must present specific evidence demonstrating obvious injustice in his case.

¶ 28 When a defendant seeking discretionary review is “no different from other 

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

and . . . has not argued any specific facts that demonstrate manifest injustice” this 

Court should decline to invoke Rule 2. Bishop, 255 N.C. App. at 770, 805 S.E.2d at 

370.

¶ 29 Our Supreme Court has stated “if the Rules [of Appellate Procedure] are not 

applied consistently and uniformly, federal habeas tribunals could potentially 

conclude that the Rules are not an adequate and independent state ground barring 

review. Therefore, it follows that our appellate courts must enforce the Rules of 

Appellate Procedure uniformly.” State v. Hart, 361 N.C. 309, 317, 644 S.E.2d 201, 

206 (2007).

¶ 30 The majority’s opinion relies upon State v. Ricks, 271 N.C. App. 348, 843 S.E.2d 
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TYSON, J., dissenting

652, writ allowed, 375 N.C. 281, 842 S.E.2d 602 (2020) to buttress its assertion that 

this Court should invoke Rule 2. The majority’s opinion correctly notes this Court’s 

divided opinion in State v. Ricks has been appealed to the Supreme Court of North 

Carolina. The opinion and the mandate in Ricks have been stayed. State v. Ricks, 

374 N.C. 749, 842 S.E.2d 88 (2020). As acknowledged in the majority’s opinion, Ricks

is neither precedential nor binding on the case before us. 

¶ 31 Defendant has not presented any evidence demonstrating “exceptional 

circumstances.” See Campbell, 369 N.C. at 603, 799 S.E.2d at 602. Defendant has 

not demonstrated he is any “different from other defendants who failed to preserve 

their constitutional arguments in the trial court” nor has he “argued any specific facts 

that demonstrate manifest injustice.” Bishop, 255 N.C. App. at 770, 805 S.E.2d at 

370. This Court should dismiss defendant’s petition and decline to invoke Rule 2. Id.

IV. No Showing of Merit

¶ 32 It is uncontested the trial court properly found the multiple offenses the jury 

convicted defendant of committing were sexually violent and aggravated offenses 

pursuant to N.C. Gen. Stat. § 14-208.6 (2019). In open court and in presence of 

defendant and his counsel, the trial court found:

I do find that this was a sexually violent offense. That the 

defendant has not been classified as a sexually violent 

predator. That the defendant is not a recidivist. And that 

the offense of conviction is an aggravating offense. Based 

on the above findings, the Court does order registration as 

a sex offender for the defendant’s natural life.
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TYSON, J., dissenting

¶ 33 Defendant failed to object during his sentencing hearing, even after being 

explicitly asked by the trial court if he wished to object to the order. Defendant’s 

counsel explicitly noted “[defendant is] going to be subject to lifetime registration and 

satellite based monitoring,” while asking the trial court for leniency in sentencing.

¶ 34 Defendant’s appellate counsel now attempts to raise a purported and barred 

constitutional violation on appeal. In the absence of a demand, preservation, or 

objection from defendant, his petition for writ of certiorari to invoke jurisdiction to fix 

his admitted failure to comply with Appellate Rule 3, and, if granted, to invoke Rule 

2 is properly dismissed and denied.

¶ 35 Defendant’s counsel’s frivolous appellate argument hinges on the notion and 

assertion that the trial court or this Court should sit as a “second chair” to his defense 

counsel.

[A judge’s] job [is] to call balls and strikes, and not 

to pitch or bat . . . [t]he role of an umpire and a judge is 

critical. They make sure everybody plays by the rules . . . 

we are a Government of laws and not of men. It is that rule 

of law that protects the rights and liberties of all 

Americans.

¶ 36 Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief 

Justice of the United States: Hearing Before the Committee on the Judiciary United 

States Senate, 109 Cong. 56 (Statement of John G. Roberts, Jr.).

¶ 37 “It is not the role of the appellate courts . . . to create an appeal for an 

appellant.” Viar v. N. Carolina Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 
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TYSON, J., dissenting

361 (2005). Defendant cannot raise a constitutional argument for the first time on 

appeal. The petition for writ of certiorari by defendant is properly dismissed.

V. Conclusion

¶ 38 Defendant failed to argue, raise, or preserve his constitutional challenge to his 

SBM order. Defendant may not raise this issue for the first time on appeal. Dismissal 

of his petition is the only proper ruling. I respectfully dissent.