State v. Talbert

NO. COA13-896

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

v. Forsyth County
No. 02 CRS 60408
MICHAEL TALBERT

Appeal by defendant from order entered 14 February 2013

nunc pro tunc to 30 September 2011 by Judge A. Robinson Hassell

in Forsyth County Superior Court. Heard in the Court of Appeals

9 December 2013.

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

Mark L. Hayes for defendant-appellant.

McCULLOUGH, Judge.

Defendant Michael Talbert appeals an order by the trial

court requiring him to enroll in lifetime satellite-based

monitoring after finding that defendant had committed an

aggravated offense within the meaning of N.C. Gen. Stat. § 14-

208.6(1a). For the reasons discussed herein, we affirm the

trial court’s order.

I. Background
 -2-
On 12 September 2002, an indictment was returned charging

defendant with one count of second-degree rape in violation of

N.C. Gen. Stat. § 14-27.3(a). Defendant was also charged with

one count of second-degree sexual offense in violation of N.C.

Gen. Stat. § 14-27.5(a). Both indictments alleged that the

victim was physically helpless at the time of the incident.

On 14 February 2003, a jury found defendant guilty of both

charges. Defendant was sentenced to an active term of fifty-one

(51) to seventy-one (71) months imprisonment. Defendant was

also required to register as a sex offender upon release.

Defendant appealed to our Court. Our Court found no error

in the trial court’s proceedings in State v. Talbert, 2004 N.C.

App. LEXIS 711 (2004) (unpublished).

On 5 August 2011, 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 29 August 2011 in Forsyth

County Superior Court. DOC had made an initial determination

that defendant had been convicted of an aggravated offense as

defined in section 14-208.6(1a) of the North Carolina General

Statutes, and thus, had met the criteria set out in section 14-

208.40(a)(1) requiring enrollment in SBM for life.
 -3-
Following the hearing, the trial court entered an order 6

July 2012 nunc pro tunc to 30 September 2011. The 6 July 2012

order made the following pertinent findings of fact:

2) In the State’s indictment, the State
alleged as to Count 2 specifically with
regard to the second-degree rape and sex
offense charges –- in Count 1 and Count 2
–- both allegations were with respect to
the victim being, at the time, physically
helpless. . . .

3) Upon conviction, the defendant appealed,
and the case was heard in the Court of
Appeals on February 4, 2004 whereupon it
issued its opinion on May 4, 2004 finding
no error with the trial court proceedings
or with the sentencing.

4) A copy of the Court of Appeals’ opinion
was obtained in a duplication by
microfilm of the court file upon which
the Court takes judicial notice as being
an accurate copy and within the bounds as
maintained by the Clerk of Superior Court
in Forsyth County. . . .

5) The Court further finds as a fact as set
forth in the body of the appellate
opinion . . . an account of the facts,
the defendant’s acknowledgement that he
had sex with the victim and his
acknowledgment that she had not
consented, and his acknowledgement and
admission that he removed the victim’s
pants and underwear while she was passed
out[.] [T]he next day, the victim went
to the Forsyth Medical Center for a
sexual assault examination. Forensic
Nurse Courtney Tucker found at least 14
tears to the victim’s cervix and bruise
on her outer right thigh. Nurse Tucker
 -4-
indicated she did not believe the sex was
consensual[.] Nurse Tucker also believed
that the injuries were consistent with
blunt force trauma and with the victim’s
assertion that she was asleep or passed
out at the time of digital penetration
and intercourse.

The trial court concluded that defendant had committed an

aggravated offense within the meaning of N.C. Gen. Stat. § 14-

208.6 and that defendant was an appropriate candidate for

lifetime SBM. For reasons unclear from the record, on 14

February 2013, the trial court entered another written order

making the same findings of fact and conclusions of law as in

the 6 July 2012 order.

Defendant appeals.

II. Standard of Review

In reviewing the 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

of fact are conclusive on appeal if supported by competent

evidence, even if the evidence is conflicting.” State v.
 -5-
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 (A) because defendant’s

prior conviction did not involve the use of “force” as

contemplated in N.C. Gen. Stat. § 14-208.6(1a), his conviction

for second-degree rape did not constitute an aggravated offense,

and thus, the trial court erred by requiring defendant to enroll

in lifetime SBM. In the alternative, defendant argues that (B)

the trial court erred by relying on the particular underlying

facts of defendant’s prior conviction in determining whether

defendant had committed an aggravated offense.

A. Aggravated Offense

First, defendant argues the trial court erred by finding

that his second-degree rape conviction constituted an aggravated

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

him to lifetime SBM. Specifically, defendant argues that his

second-degree rape conviction did not involve the “use of force

or threat of serious violence.” We disagree.

“When an offender is convicted of a reportable conviction

as defined by G.S. 14-208.6(4), and there has been no

determination by a court on whether the offender shall be
 -6-
required to enroll in [SBM], the Division of Adult Correction

shall make an initial determination on whether the offender

falls into one of the categories described in G.S. 14-

208.40(a).” N.C. Gen. Stat. § 14-208.40B(a) (2013). “If the

Division of Adult Correction determines that the offender falls

into one of the categories described in G.S. 14-208.40(a), the

district attorney, representing the Division of Adult

Correction, shall schedule a hearing in superior court for the

county in which the offender resides.” N.C. Gen. Stat. § 14-

208.40B(b) (2013).

At defendant’s hearing, the trial court found that

defendant’s second-degree rape conviction constituted an

“aggravated offense” within the meaning of N.C. Gen. Stat. § 14-

208.6(1a). An “aggravated offense” is defined 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) (emphasis added).

“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
 -7-
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.”

State v. Green, __ N.C. App. __, __, 746 S.E.2d 457, 464 (2013)

(citation and quotation marks omitted).

In the case sub judice, defendant was convicted 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 was “physically helpless.” N.C.G.S. § 14-27.3(a)

provides the following:

(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.G.S. § 14-27.3(a) (2013) (emphasis added).

The only applicable North Carolina case regarding this

issue is addressed in State v. Oxendine, 206 N.C. App. 205, 696

S.E.2d 850 (2010). In Oxendine, the defendant pled guilty to

numerous charges including three counts of second-degree rape
 -8-
involving a mentally disabled victim under subsection (a)(2).

Id. at 206, 696 S.E.2d at 851. The defendant was ordered to

enroll in SBM after being released from prison and he appealed

the trial court’s order. Id. at 208, 696 S.E.2d at 851-52. The

majority accepted the State’s argument that the defendant

“should nonetheless be required to enroll in lifetime SBM given

that he pled guilty to three counts of second-degree rape of a

mentally disabled victim, an aggravated offense as defined by

N.C.G.S. § 14-208.6(1a)” and based its conclusion solely on our

Court’s decision in State v. McCravey, 203 N.C. App. 627, 692

S.E.2d 409 (2010) (holding that where the essential elements of

second-degree rape pursuant to N.C.G.S. § 14-27.3(a)(1) are

“covered by the plain language of ‘aggravated offense’ as

defined by N.C. Gen. Stat. § 14-208.6(1a), we hold that second-

degree rape is an ‘aggravated offense’” subject to lifetime

SBM). Id. at 209, 696 S.E.2d at 853 (emphasis added).

Because we are bound by the decision in Oxendine, we reject

defendant’s arguments that subsection (a)(2) of N.C. Gen. Stat.

§ 14-27.3 does not constitute an aggravated offense for SBM

purposes. See In re Appeal from Civil Penalty Assessed for

Violations of Sedimentation Pollution Control Act, 324 N.C. 373,

384, 379 S.E.2d 30, 37 (1989) (holding that “[w]here a panel of
 -9-
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”).

While we reinforce the ultimate conclusion reached in

Oxendine, we find valuable guidance in Judge Stroud’s separate

concurring opinion. In her concurrence, Judge Stroud agreed

with the ultimate result reached by the majority opinion “to the

extent that it . . . remands to the trial court for entry of an

order that defendant enroll in SBM for life under N.C. Gen.

Stat. § 14-208.40A(c), as second-degree rape under N.C. Gen.

Stat. § 14-27.3(a)(2) is an ‘aggravated offense’ as defined by

N.C. Gen. Stat. § 14-208.6(1a).” However, she noted that mere

citation to McCravey by the majority opinion “is not an adequate

rationale for this holding, given the issues raised in this

case.” Id. at 212, 696 S.E.2d at 855. Judge Stroud observed

that while McCravey held that second-degree rape pursuant to

N.C. Gen. Stat. § 14-27.3(a)(1) is an aggravated offense, “this

Court has not previously addressed the issue of whether second-

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

‘aggravated offense.’” Id. at 213, 696 S.E.2d at 855. In order
 -10-
to provide a “more in-depth analysis” of the issue, Judge Stroud

stated the following:

In McCravey, the defendant argued “that the
statutory definition of ‘aggravated offense’
in N.C. Gen. Stat. § 14-208.6(1a) is
unconstitutionally vague because it does not
specify what constitutes ‘use of force[.]’”
[McCravey] at __, 692 S.E.2d at 418. This
Court considered the context and purpose of
the SBM statute and the case law which has
defined “the force required in a sexual
offense of this nature.” Id. at __, 692
S.E.2d at 419-20. In McCravey, we held that
The language of N.C. Gen. Stat. §
14-208.6(1a) – ‘through the use of
force or the threat of serious
violence’ – reflects the
established definitions as set
forth in case law of both physical
force and constructive force, in
the context of the sexual offenses
enumerated in N.C. Gen. Stat. §§
14-27.2, 14-27.3, 14-27.4, and 14-
27.5. (emphasis added).

The legislature intended that
the same definition of force, as
has been traditionally used for
second-degree rape, to apply to
the determination under N.C. Gen.
Stat. § 14-208.6(1a) that an
offense was committed by ‘the use
of force or the threat of serious
violence.’ Id.

Id. at 213-14, 696 S.E.2d at 855-56 (emphasis added).

Furthermore, Judge Stroud discussed our Supreme Court’s

decision in State v. Holden, 338 N.C. 394, 450 S.E.2d 878

(1994), a case we find relevant to the issue before us. In
 -11-
Holden, the defendant argued that there was no evidence

presented from which a jury could find that a prior conviction

of attempted second-degree rape involved violence or the threat

of violence, sufficient to prove an aggravating factor pursuant

to N.C.G.S. § 15A-2000(e)(3). Id. at 404, 450 S.E.2d at 883.

The North Carolina Supreme Court held that attempted second-

degree rape pursuant to N.C. Gen. Stat. § 14-27.3(a)(2) involved

the “use or threat of violence to the person” within the meaning

of N.C. Gen. Stat. § 15A-2000(e)(3), which lists aggravating

circumstances that may be considered when sentencing a defendant

to life or death. Id. Under N.C. Gen. Stat. § 15A-2000(e)(3),

the required prior felony

can be either one which has as an element
the involvement of the use or threat of
violence to the person, such as rape or
armed robbery, or a felony which does not
have the use or threat of violence to the
person as an element, but the use or threat
of violence to the person was involved in
its commission.

Id. (citations omitted) (emphasis added). The Holden Court

noted that “for purposes of N.C.G.S. § 15A-2000(e)(3), rape is a

felony which has as an element the use or threat of violence to

the person” and that the “felony of attempt to commit rape is

therefore by nature of the crime a felony which threatens

violence.” Id. at 404-405, 450 S.E.2d at 883-84 (citations
 -12-
omitted). The Holden Court rejected the “notion of any felony

which may properly be deemed ‘non-violent rape’” and relied on

the opinions of military courts:

Under the Uniform Code of Military Justice,
rape is always, and under any circumstances,
deemed as a matter of law to be a crime of
violence. United States v. Bell, 25 M.J.
676 (A.C.M.R. 1987), rev. denied, 27 M.J.
161 (C.M.A. 1988); United States v. Myers,
22 M.J. 649 (A.C.M.R. 1986), rev. denied, 23
M.J. 399 (C.M.A. 1987). As stated in Myers,
military courts "specifically reject the
oxymoronic term of 'non-violent rape.' The
more enlightened view is that rape is always
a crime of violence, no matter what the
circumstances of its commission." Myers, 22
M.J. at 650. "Among common misconceptions
about rape is that it is a sexual act rather
than a crime of violence." United States v.
Hammond, 17 M.J. 218, 220 n.3 (C.M.A. 1984).

Id. at 405, 450 S.E.2d at 884 (citation omitted). Based on

similar logic, the Holden Court held that the crime of attempted

rape always involved at least a “threat of violence” within the

meaning of N.C. Gen. Stat. § 15A-2000(e)(3) and stated the

following:

The acts of having or attempting to
have sexual intercourse with another person
who is mentally defective or incapacitated
and statutorily deemed incapable of
consenting – just as with a person who
refuses to consent – involve the “use or
threat of violence to the person” within the
meaning of N.C.G.S. § 15A-2000(e)(3). In
this context, the force inherent to having
sexual intercourse with a person who is
 -13-
deemed by law to be unable to consent is
sufficient to amount to ‘violence’ as
contemplated by the General Assembly in this
statutory aggravating circumstance.
Likewise, the attempt to have sexual
intercourse with such a person inherently
includes a threat of force sufficient to
amount to a “threat of violence” within the
meaning of this aggravating circumstance.

Nor do we believe that having or
attempting to have sexual intercourse with a
“physically helpless” person in violation of
N.C.G.S. § 14-27.3(a)(2) may properly be
deemed “non-violent” rape or attempted rape.
We find no merit in the suggestion that
N.C.G.S. § 14-27.3(a)(2) makes it a crime to
have consensual sexual intercourse with a
physically helpless person.

Id. at 406, 450 S.E.2d at 884-85 (citations omitted) (emphasis

in original).

For the foregoing reasons, we conclude that the elements of

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

sufficient to constitute an “aggravated offense” as defined in

N.C. Gen. Stat. 14-208.6(1a). Accordingly, we hold that the

trial court did not err in ordering defendant to enroll in

lifetime SBM.

B. Elements of the Convicted Offense

Defendant argues and the State concedes that at the SBM

hearing and in both the 29 June 2012 order and 14 February 2013

order, the trial court referenced and relied on several
 -14-
underlying facts of defendant’s second-degree rape offense in

its determination of whether defendant had committed an

aggravated offense for SBM purposes.

It is well established, when determining whether an offense

is an aggravated offense pursuant to N.C.G.S. § 14-208.40A, the

trial court is only to consider the elements of the offense of

which a defendant was convicted and is not to consider the

underlying factual scenario. See Green, __ N.C. App. at __, 746

S.E.2d at 464. However, as discussed above, this Court has

previously held that the offense of second-degree rape under

subsection (a)(2) constitutes an aggravated offense. Therefore,

the trial court properly ordered defendant to enroll in lifetime

SBM. Any reliance on the underlying facts of defendant’s

offense to determine that it was an aggravated offense and any

procedural defects were harmless in the circumstances before us.

The order of the trial court subjecting defendant to lifetime

SBM is affirmed.

Affirm.

Chief JUDGE MARTIN and JUDGE ERVIN concur.