State v. Robinson

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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
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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
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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.
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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).
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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
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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]
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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
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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
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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
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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
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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
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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
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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).