An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1436 NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Forsyth County No. 12 CRS 050342 CHRISTOPHER LEEVETT ROBINSON
Appeal by defendant from judgment entered 11 March 2013 by
Judge V. Brad Long in Forsyth County Superior Court. Heard in
the Court of Appeals 3 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General Sherri Horner Lawrence, for the State.
M. Gordon Widenhouse, Jr., for defendant-appellant.
HUNTER, Robert C., Judge.
Christopher Leevett Robinson (“defendant”) was sentenced to
200 to 249 months imprisonment after pleading guilty to three
counts of first degree sexual offense with a child and two
counts of indecent liberties with a child. Defendant appeals
from the trial court’s civil judgment imposing the highest level
of supervision and satellite-based monitoring (“SBM”) for a -2- period of thirty years following his release from prison. On
appeal, defendant argues that the trial court erred by: (1)
basing some of its factual findings in the SBM hearing on
inadmissible evidence and (2) impermissibly considering the
facts underlying his conviction in its SBM determination.
After careful review, we affirm the trial court’s judgment.
Background
The prosecution provided the following factual basis to
support the guilty plea: Defendant is the biological uncle of
the alleged child victim (“the child”), who was nine years old
when allegations against defendant were submitted to the
Winston-Salem Police Department. On 26 September 2011, the
child was playing a game called “telling secrets” with her
friends. Accompanying the child was her maternal grandmother
and adoptive mother, who is also defendant’s mother (“the
grandmother”). The child’s biological mother, who is
defendant’s sister, was not present. At one point the child
became upset during the game, and when the grandmother asked
why, the child revealed that defendant had been molesting her.
When she was told what the child said, defendant’s sister
confronted him about the allegations. Defendant admitted to his
sister that he had been molesting the child for “quite some -3- time.” Defendant denied penetrating the child’s vagina but
admitted to his sister that he had put his penis in the child’s
rectum.
Soon thereafter, the child was examined by a forensic
interviewer. She revealed during this interview that defendant
had molested her multiple times by putting his penis in her
rectum, specifically when she was seven and eight years old, and
that the last incident occurred when she was nine years old.
The child said that defendant would take her out of her bed and
put her on the floor, take off her clothes, and penetrate her
rectum until he ejaculated. Defendant later admitted to police
investigators that he started abusing the child when she was a
few months old by rubbing his hand on her vagina. Defendant
denied ever “penetrating” the child, but admitted to rubbing his
penis around her vagina on at least thirty occasions and
ejaculating in front of her.
In April 2012, defendant was indicted on three counts of
sexual offense with a child by an adult and two counts of taking
indecent liberties with a minor. On 11 March 2013, defendant
pled guilty pursuant to an agreement that the charges would be
consolidated for sentencing as one count of sexual offense with
a child by an adult and defendant would be entitled to a -4- mitigating factor that he accepted responsibility at an early
stage of the proceedings.
After sentencing, the trial court conducted a hearing to
determine whether defendant required SBM. The Department of
Corrections performed a STATIC-99 risk assessment, which is the
tool used for assessing a sexual offender’s likelihood for
reoffending, on defendant. Defendant obtained a score of one
point, indicating a low risk of recidivism.
During the SBM hearing, the grandmother testified that
defendant had a long history of prior sexual misconduct. First,
she testified that defendant sexually assaulted his classmates
while at school but admitted that she had not personally
witnessed any such conduct and did not identify any victims;
rather, she became aware of these incidents because she had to
“go through other changes when he was in school” to prevent
similar future occurrences. Second, the grandmother testified
that defendant molested a mentally handicapped young girl. She
again did not provide any specific information to corroborate
this claim, and although she claimed that there may be police
records of the incident, none were produced at the hearing.
Finally, the grandmother testified that she personally witnessed
defendant inappropriately grabbing both herself and defendant’s -5- sister. She testified that defendant grabbed her “in places he
shouldn’t be” and that he grabbed his sister on “their [sic.]
breasts, their [sic.] behind.”
Based only on this testimony, the trial court found as fact
that defendant sexually molested numerous females in his
environment, including his mother, sister, and classmates at
school, and that defendant had been investigated on at least one
prior occasion for sexually molesting a mentally handicapped
female. Based on the factual basis of defendant’s guilty plea,
the trial court also found that defendant began molesting the
child when she was an infant and that this conduct continued
until she was nine years old. The trial court used these
findings of fact to conclude that defendant posed a sufficient
risk of reoffending to warrant the imposition of the highest
level of supervision and ordered SBM for 30 years after his
release from prison. Defendant filed timely notice of appeal.
Standard of Review
In SBM proceedings, the factual findings of the trial court
are reviewed to determine whether they are supported by
competent evidence. State v. Kilby, 198 N.C. App. 363, 366-367,
679 S.E.2d 430, 432 (2009). If the factual findings are
supported by competent evidence, they are binding on appeal. -6- State v. Thomas, __N.C. App. __, __, 741 S.E.2d 384, 386 (2013).
The trial court’s conclusions of law are reviewed for “legal
accuracy and to ensure that those conclusions reflect a correct
application of law to the facts found.” State v. Green, 211
N.C. App. 599, 601, 710 S.E.2d 292, 294 (2011).
Discussion
N.C. Gen. Stat. § 14-208.40 (2013) sets out the guidelines
for imposing SBM. “Active” SBM, which refers to continuous
satellite-based monitoring, is the highest possible level of
supervision and monitoring. N.C. Gen. Stat. § 14-208.40(b).
N.C. Gen. Stat § 14-208.40A outlines the procedure for
determining whether an offender requires SBM enrollment. In the
qualification phase, N.C. Gen. Stat § 14-208.40A lists several
offense categories that make an offender eligible for SBM
enrollment, one of which provides “the offense involved the
physical, mental, or sexual abuse of a minor.” N.C. Gen. Stat.
§14-208.40A(a). If the court finds during the qualification
phase that the offender falls into this category, the trial
court must perform a risk assessment to determine whether SBM is
warranted. After the risk assessment is completed, the trial
court has discretion to determine whether the offender requires
supervision and monitoring. N.C. Gen. Stat. § 14-208.40A(e). -7- A low or moderate risk assessment in a STATIC-99 score
alone is insufficient to support a determination that the
offender requires the highest level of supervision and
monitoring. Kilby, 198 N.C. App. at 369-370, 679 S.E.2d at 434.
The trial court is permitted to consider any proffered evidence
relevant to the risk of recidivism posed by a defendant. Green,
211 N.C. App. at 602-603, 710 S.E.2d at 295. The proffered
evidence must be competent and admissible to support a trial
court’s finding of fact. Kilby, 198 N.C. App. at 367, 679
S.E.2d 432.
I. The Grandmother’s Testimony
Defendant first contends that the trial court’s findings of
fact that defendant sexually molested his mother, sister,
classmates, and a mentally handicapped young female were
unsupported by competent and admissible evidence, and therefore
the trial court erred in imposing the highest level of
supervision and monitoring based on those findings. We agree
that some of the factual findings entered by the trial court
were unsupported by competent and admissible evidence, but we
affirm the imposition of the highest level of SBM.
The North Carolina Rules of Evidence provide that “[a]
witness may not testify to a matter unless evidence is -8- introduced sufficient to support a finding that he has personal
knowledge of the matter.” N.C. Gen. Stat. § 8C-1, Rule 602
(2013). Personal knowledge of a matter primarily refers to
personal perception of an occurrence. State v. Cox, 296 N.C.
388, 391, 250 S.E.2d 259, 261 (1979). Generally speaking, as
long as a lay witness has a basis of personal knowledge for his
or her testimony, the evidence is admissible so long as it is
relevant. State v. Anthony, 354 N.C. 372, 411, 555 S.E.2d 557,
583 (2001). Testimony that amounts to mere speculation rather
than personal knowledge is inadmissible. State v. Garcell, 363
N.C. 10, 36, 678 S.E.2d 618, 635, cert. denied, 558 U.S. 999,
175 L. Ed. 2d 362 (2009).
First, we hold that the trial court’s finding of fact that
defendant molested his mother and his sister was supported by
competent and admissible evidence. The testimony supporting
these findings was based on the personal observations of the
grandmother of the sexual assaults on herself and defendant’s
sister; therefore, based on the plain application of Rule 602,
the grandmother’s testimony was admissible. See N.C. Gen. Stat.
§ 8C-1, Rule 602 (2013); Anthony, 354 N.C. at 411, 555 S.E.2d at
583. However, defendant contends that even if he touched his
mother and his sister in the manner alleged, “[the grandmother] -9- did not provide any sufficient details or describe how any of
this touching was sexual misconduct.” Defendant claims that
since the grandmother did not describe the conduct as sexual in
nature, this testimony did not support the trial court’s factual
finding that defendant “molested” her or his sister. It is
clear, however, that the grandmother categorized the act of
defendant grabbing her as inappropriate by saying that he
touched her “in places he shouldn’t be.” Regarding the
inappropriate touching of defendant’s sister, the fact that the
grandmother testified that defendant specifically grabbed “their
[sic.] breasts, their [sic.] behind” indicates the sexual nature
of the touching. Therefore, we conclude that the trial court’s
finding of fact that defendant molested his mother and sister
was supported by competent and admissible evidence.
Second, the trial court’s finding that defendant molested
his classmates at school was not supported by competent and
admissible evidence. During her testimony, the grandmother
admitted that she did not observe any of the incidents of sexual
misconduct that she alleged to have occurred at school. The
State contends that the grandmother would have had personal
knowledge of incidents that defendant was involved in at school
simply because she was his parent. We disagree with this -10- contention. Personal knowledge for the purposes of Rule 602
requires personal perception of an act or occurrence, not mere
speculation. See State v. Elkins, 210 N.C. App. 110, 117, 707
S.E.2d 744, 751 (2011). The grandmother testified that she knew
of defendant molesting children at his school merely because she
“had to go through other changes when he was in school . . . to
keep his hands to himself and things of that nature,” not
because she had any personal knowledge of these incidents.
Because this testimony amounts to speculation, it was
inadmissible for lack of personal knowledge. See Elkins, 210
N.C. App. at 117, 707 S.E.2d at 751. Therefore, the trial
court’s finding of fact that defendant molested his classmates
is not supported by competent evidence and cannot support the
SBM determination. See Kilby, 198 N.C. App. at 367, 679 S.E.2d
432.
Finally, the trial court’s finding that defendant was
investigated for sexually molesting a mentally handicapped girl
was similarly unsupported by competent and admissible evidence.
Again, the grandmother admitted that she did not observe this
alleged incident, and it is unclear from her testimony how she
became aware of it. While she mentioned that there may be
police reports of the incident, she did not claim to be familiar -11- with or possess these reports. Because there was no evidence
indicating that the grandmother had personal knowledge of any
such investigation, her testimony was inadmissible. See N.C.
Gen. Stat. § 8C-1, Rule 602 (2013). Accordingly, the trial
court’s finding of fact that defendant was investigated for
molesting a mentally handicapped girl was not supported by
competent evidence and may not support the SBM determination.
See Kilby, 198 N.C. App. at 367, 679 S.E.2d 432.
In sum, we conclude that the trial court properly found as
fact that defendant molested the grandmother and defendant’s
sister as an adult, but because the grandmother did not have
personal knowledge regarding any of the other alleged
misconduct, the trial court’s findings of fact that he molested
his classmates and was investigated for molesting a mentally
handicapped girl were not supported by competent and admissible
evidence.
II. Findings Supporting SBM
Defendant next contends that the trial court erred by using
the factual circumstances of the underlying convictions as
support for the imposition of SBM. Defendant also argues that
since his sexual misconduct was directed toward a family member,
he is less likely to reoffend. We disagree as to both -12- arguments.
First, defendant asserts that since “some of these
additional findings related to the facts of the offenses for
which [defendant] was subject to SBM, they could not support a
conclusion that he required the highest possible level of
supervision and monitoring.” However, this Court has recently
held that “the trial court may properly consider evidence of the
factual context of a defendant’s conviction when making
additional findings as to the level of supervision required of a
defendant . . . .” Green, 211 N.C. App. at 603, 710 S.E.2d at
295.
In Green, the defendant pled guilty to two counts of taking
indecent liberties with a minor. Id. at 599, 710 S.E.2d at 293.
The trial court imposed the highest level of supervision and
monitoring for five years based on the defendant’s moderate-low
risk assessment score in addition to other factual findings, one
of which was that “(1) the victims were especially young,
neither victim was able to advocate for herself, one victim was
too young to possibly even speak . . . .” Id. at 601, 710
S.E.2d at 294. The defendant appealed his SBM order, arguing
that since the trial court’s finding that his victims were
especially young “[was] based on the underlying factual scenario -13- of his conviction,” this finding should not have been used to
supplement the DOC’s risk-assessment score to impose the highest
level of SBM. Id. (quotation marks omitted). This Court
disagreed, holding that the underlying facts of the conviction
were properly considered by the trial court. Id. at 603, 710
S.E.2d at 295. The Court made a distinction between using the
underlying facts of the conviction in the qualification and risk
assessment phases of the SBM hearing. See id. at 602, 710
S.E.2d at 295. It held that the “factual context of the crime
may not be considered in determining whether a defendant’s
offense of conviction was an ‘aggravated offense’ or an offense
involving the physical, mental, or sexual abuse of a minor,” but
the trial court “should consider any proffered and otherwise
admissible evidence relevant to the risk posed by a defendant”
during the risk assessment phase. Green, 211 N.C. App. at 603,
710 S.E.2d at 295 (citing State v. Morrow, 200 N.C. App. 123,
131, 683 S.E.2d 754, 760-761 (2009)). Since the trial court
used the underlying factual basis of the plea only in the risk
assessment phase of the SBM hearing, and not in the
qualification phase, the Green Court found no error. See id. at
603, 710 S.E.2d at 295.
Here, the trial court did not use the underlying facts of -14- defendant’s conviction in the qualification phase of the SBM
hearing. Based only on the elements of defendant’s convicted
crimes of indecent liberties with a minor and first degree
sexual offense with a child, the trial court determined that
defendant fit into the category of offenders that involved the
sexual abuse of a minor. The trial court did, however, consider
the facts underlying the conviction in the risk assessment phase
of the SBM hearing. Thus, pursuant to Green, we conclude the
trial court did not err. Defendant never contested the child’s
age and conceded that there was a factual basis to support his
guilty plea. Furthermore, defendant had previously admitted his
sexual misconduct towards the child to investigators and
described these incidents in detail. Thus, the continuity of
defendant’s improper sexual behavior around the child over
several years and the factual circumstances of her age were
relevant to the trial court’s inquiry into whether defendant may
pose a high risk of recidivism after his release from prison.
N.C. Gen. Stat. §14-208.40A; Green, 211 N.C. App. at 603, 710
S.E.2d at 295.
Defendant’s argument that he is less likely to reoffend due
to the fact that his sexual misconduct was directed towards a
family member and not a stranger is also without merit. As -15- discussed above, competent evidence supports the trial court’s
factual finding that in addition to sexually abusing the child
for years, defendant had sexually molested his mother and
sister. Contrary to defendant’s argument, this finding
indicates that there is perhaps an unusually high risk that
defendant will reoffend when around family members. Defendant’s
argument is overruled.
III. Conclusions of Law
Defendant’s final argument is that the trial court erred by
concluding that he requires the highest level of supervision and
monitoring because its findings of fact supporting that
conclusion are not supported by competent evidence. Although
some of the trial court’s findings of fact were not supported by
competent evidence, we conclude that there were still sufficient
findings to support the trial court’s conclusions of law.
The holding in Green, discussed above, is also helpful to
this analysis. In Green, after the defendant scored moderate-
low on his STATIC-99 risk assessment test, the trial court made
the additional findings that (1) the victims were especially
young, (2) the defendant had a history of domestic violence, and
(3) the defendant had not obtained sex offender treatment.
Green, 211 N.C. App. at 601, 710 S.E.2d at 294. On appeal, this -16- Court ruled that the factual finding that defendant had
“committed multiple acts of domestic violence” was unsupported
by competent evidence and therefore should not have been used to
support the determination that the defendant required the
highest level of SBM. Id. at 604, 710 S.E.2d 296. Nonetheless,
the Court held that the remaining factual findings, as well as
defendant’s moderate-low risk-assessment score, were sufficient
grounds to support the trial court’s imposition of the highest
level of supervision and monitoring. Id. at 604-605, 710 S.E.2d
at 296. The Court noted that “[a]s section 15A–
1340.16(d) provides that the very young age of the victim is an
appropriate aggravating factor for sentencing purposes, we see
no reason why that fact would not also be a similarly
‘aggravating’ finding in the SBM context.” Id.
Here, the trial court properly entered the following
findings of fact: (1) defendant sexually molested his mother and
sister as an adult; (2) defendant began touching the child
inappropriately when she was an infant; and (3) the sexual
contact between defendant and the child continued until she was
nine years old. Given the “aggravating” nature of the child’s
young age at the time of the abuse, Green, 211 N.C. App. at 605,
710 S.E.2d at 296, defendant’s admittedly repeated sexual -17- assault of the child throughout her young life, and defendant’s
molestation of his mother and sister as an adult, we hold that
the trial court’s imposition of the highest level of supervision
and monitoring “reflect[s] a correct application of law to the
facts found.” Kilby, 198 N.C. App. at 367, 679 S.E.2d at 432.
Accordingly, we affirm the trial court’s judgment.
Conclusion
We conclude that the trial court’s factual findings that
defendant had molested his classmates and was investigated for
molesting a mentally handicapped girl are unsupported by
competent evidence. However, the remaining factual findings
were supported by competent and admissible evidence and were
sufficient to support the legal conclusion that defendant
requires the highest level of supervision and monitoring for 30
years after his release from prison.
AFFIRMED.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).