State v. Harris ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
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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.
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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
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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.
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State v. Green, __ N.C. App. __, __, 746 S.E.2d 457, 464 (2013)
(citation and quotation marks omitted).
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).
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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
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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).