State v. Harris

• Court: Court of Appeals of North Carolina
• Decided: June 3, 2014
• Docket: 13-1217
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1217 NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Durham County No. 06 CRS 40556 TERRY WAYNE HARRIS

Appeal by defendant from judgment entered 24 June 2013 by

Judge Orlando F. Hudson in Durham County Superior Court. Heard

in the Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Finarelli, for the State.

Wait Law, P.L.L.C., by John L. Wait, for defendant- appellant.

McCULLOUGH, Judge.

Defendant Terry Wayne Harris appeals from an order by the

trial court, requiring him to enroll in lifetime satellite-based

monitoring. On appeal, defendant argues that the trial court

erred by finding that defendant had committed an aggravated

offense within the meaning of section 14-208.6(1a) of the North

Carolina General Statutes. Based on the reasons stated herein,

we affirm the order of the trial court. -2- I. Background

On 3 July 2008, defendant was indicted for one count of

second-degree rape in violation of N.C. Gen. Stat. § 14-27.3(a).

The indictment alleged that on 30 December 2005, defendant

“unlawfully, willfully, and feloniously did carnally know and

abuse [the victim], who was at the time mentally disabled and at

the time the defendant knew [the victim] was mentally disabled.”

On 9 September 2008, defendant pled guilty to the second-

degree rape charge. Based on the trial court’s determination

that defendant had a prior record level of IV, defendant

received a minimum sentence of 80 months to a maximum sentence

of 105 months imprisonment.

In a letter dated 9 March 2013, defendant was sent a notice

from the North Carolina Department of Correction (“DOC”),

informing him that he was to appear for a satellite-based

monitoring (“SBM”) determination hearing scheduled for 15 April

2013 in Durham County Superior Court. DOC had made an initial

determination that defendant had been convicted of an aggravated

offense pursuant to N.C. Gen. Stat. § 14-208.6(1a) and thus, had

met the criteria set out in N.C. Gen. Stat. § 14-208.40(a)(1),

requiring lifetime SBM. -3- Following a hearing, the trial court entered an order on 24

June 2013 requiring defendant to enroll in lifetime SBM. The

trial court found the following:

1. The defendant was convicted of a reportable conviction as defined by G.S. 14-208.6(4), but the sentencing court made no determination on whether the defendant should be required to enroll in [SBM] under Article 27A of Chapter 14 of the General Statutes.

2. The Division of Adult Correction has made an initial determination that the offender falls into at least one of the categories requiring [SBM] under G.S. 14- 208.40[.]

. . . .

4. The defendant (a) falls into at least one of the categories requiring [SBM] under G.S. 14-208.40 in that (iii) the offense of which the defendant was convicted was an aggravated offense.

Defendant timely appeals the 24 June 2013 order.

II. Standard of Review

In reviewing SBM orders, “[w]e review the trial court’s

findings of fact to determine whether they are supported by

competent record evidence, and we review the trial court’s

conclusions of law for legal accuracy and to ensure that those

conclusions reflect a correct application of law to the facts

found.” State v. McCravey, 203 N.C. App. 627, 637, 692 S.E.2d

409, 418 (2010) (citation omitted). “The trial court’s findings -4- of fact are conclusive on appeal if supported by competent

evidence, even if the evidence is conflicting.” State v.

Jarvis, 214 N.C. App. 84, 94, 715 S.E.2d 252, 259 (2011)

(citation and quotation marks omitted).

III. Discussion

On appeal, defendant argues that his prior conviction of

second-degree rape under N.C. Gen. Stat. § 14-27.3(a)(2) does

not constitute an aggravated offense as defined in N.C. Gen.

Stat. § 14-208.6(1a). Thus, defendant contends that the trial

court erred by ordering him to enroll in lifetime SBM.

N.C. Gen. Stat. § 14-208.6(1a) defines an “aggravated

offense” as

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 years old.

N.C. Gen. Stat. § 14-208.6(1a) (2013).

When a trial court determines whether a crime constitutes an aggravated offense, it 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. In other words, the elements of the offense must fit within the statutory definition of aggravated offense. -5- State v. Green, __ N.C. App. __, __, 746 S.E.2d 457, 464 (2013)

In the present case, defendant was convicted of one count

of second-degree rape based upon an indictment alleging a

violation of N.C. Gen. Stat. § 14-27.3(a), which governs

situations in which the victim is mentally disabled and where

the person engaging in vaginal intercourse “knows or should

reasonably know” that the victim is mentally disabled. N.C.

Gen. Stat. § 14-27.3(a) provides as follows:

(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person: (1) By force and against the will of the other person; or (2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless.

N.C. Gen. Stat. § 14-27.3(a) (2013) (emphasis added).

In State v. Talbert, 2014 N.C. App. LEXIS 316 (2014), our

Court addressed this identical issue. In Talbert, the defendant

was convicted of second-degree rape based upon an indictment

alleging that the victim was physically helpless at the time of

the incident in violation of N.C. Gen. Stat. § 14-27.3(a)(2). -6- Id. at __, __ S.E.2d at __. Following a SBM determination

hearing, the trial court entered an order finding that the

Talbert defendant had committed an aggravated offense within the

meaning of N.C. Gen. Stat. § 14-208.6 and ordered the defendant

to enroll in lifetime SBM. Id. at __, __ S.E.2d at __. The

Talbert defendant appealed the SBM determination. Our Court

held that because the elements of second-degree rape under N.C.

Gen. Stat. § 14-27.3(a)(2) were sufficient to constitute an

“aggravated offense” for SBM purposes, the trial court’s order

subjecting defendant to lifetime SBM should be affirmed. Id. at

__, __ S.E.2d at __.

Because the case sub judice is indistinguishable from

Talbert, we are bound by the decision of our Court. See In re

Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)

("Where a panel of the Court of Appeals has decided the same

issue, albeit in a different case, a subsequent panel of the

same court is bound by that precedent, unless it has been

overturned by a higher court.").

Accordingly, we hold that the trial court did not err by

finding that defendant’s second-degree rape conviction under

N.C. Gen. Stat. § 14-27.3(a)(2) constituted an aggravated

offense as defined in N.C. Gen. Stat. § 14-208.6(1a) and by -7- requiring defendant to enroll in lifetime SBM. The 24 June 2013

order of the trial court is affirmed.

Affirmed.

Judges HUNTER, Robert C., and GEER concur.

Report per Rule 30(e).