IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-377
Filed: 18 October 2016
Pitt County, No. 15 CRS 2559
STATE OF NORTH CAROLINA
v.
ERIC MOORE
Appeal by defendant from order entered 27 October 2015 by Judge Thomas D.
Haigwood in Pitt County Superior Court. Heard in the Court of Appeals 21
September 2016.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph
Finarelli, for the State.
William D. Spence for defendant-appellant.
TYSON, Judge.
Eric Moore (“Defendant”) appeals from the trial court’s order, which imposed
satellite-based monitoring (“SBM”) for the remainder of Defendant’s natural life. We
reverse the SBM order, and remand.
I. Background
On 27 October 2015, Defendant appeared before the trial court for a
determination of whether he should be required to enroll in the SBM program
pursuant to N.C. Gen. Stat. § 14-208.40(a). The prosecutor orally informed the court
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Opinion of the Court
that Defendant had two relevant prior convictions. According to the prosecutor’s
statement, Defendant was convicted of second-degree sexual offense in 1989. In 2006,
Defendant was convicted of attempted second-degree sexual offense. The trial court
found Defendant is a recidivist, and ordered him to enroll in SBM for the remainder
of his natural life.
II. Issues
Defendant argues the trial court erred by: (1) finding that Defendant obtained
two prior convictions and he is a recidivist, where the findings are not supported by
competent evidence; and (2) finding both of Defendant’s prior convictions are
“reportable convictions” under N.C. Gen. Stat. § 208.6(4) where both offenses occurred
prior to 1 December 2006.
III. Standard of Review
“[W]e review the trial court’s findings of fact [of an order on SBM] 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. Kilby, 198 N.C. App.
363, 367, 679 S.E.2d 430, 432 (2009) (citation and quotation marks omitted). This
Court reviews the trial court’s interpretation and application of the statutory
procedure to impose SBM de novo. State v. Davison, 201 N.C. App. 354, 357, 689
S.E.2d 510, 513 (2009), disc. review denied, 364 N.C. 599, 703 S.E.2d 738 (2010).
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IV. Evidence of Defendant’s Prior Convictions
Defendant argues the trial court erred by finding he is a recidivist, where the
only evidence the State presented to the court was the oral statement of the
prosecutor that Defendant had obtained reportable offenses in 1989 and 2006. We
agree.
If an individual has been convicted of certain “reportable” offenses as defined
by N.C. Gen. Stat. § 14-208.6(4) and no prior court has determined whether he is
required to enroll in SBM, the Department of Adult Corrections is required to make
an initial determination of whether the offender falls into one of the three alternate
categories set forth in N.C. Gen. Stat. § 14-208.40(a). N.C. Gen. Stat. § 14-208.40B(a)
(2015).
If the Department of Adult Corrections preliminarily determines the
individual meets the criteria for SBM enrollment, prior notice is provided, and the
matter is scheduled to be heard before the superior court. N.C. Gen. Stat. § 14-
208.40B(b). “At the hearing, the court shall determine if the offender falls into one of
the categories described in [N.C. Gen. Stat. §] 14-208.40(a). The court shall hold the
hearing and make findings of fact pursuant to [N.C. Gen. Stat. §] 14-208.40A.” N.C.
Gen. Stat. § 14-208.40B(c) (2015).
N.C. Gen. Stat. § 14-208.40A sets forth the procedures the trial court must
follow to determine whether the offender meets the requirements for the court to
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Opinion of the Court
order SBM. The statute provides the “district attorney shall present to the court any
evidence” that the offender falls into one of the enumerated categories. N.C. Gen. Stat.
§ 14-208.40A(a) (2015) (emphasis supplied). “After receipt of the evidence from the
parties, the court shall determine whether the offender’s conviction places the
offender in one of the categories described in [N.C. Gen. Stat. §] 14-208.40(a).” N.C.
Gen. Stat. § 14-208.40A(b) (emphasis supplied).
Neither the Judgment and Commitment for Defendant’s 1989 conviction, nor
his 2006 conviction, or any certified transcript of Defendant’s prior offenses, were
offered into evidence at the SBM hearing. These records were also not contained in
the Pitt County Clerk of Court’s file for this hearing. Defendant’s “Computerized
Criminal History,” contained in the record on appeal, was also not offered into
evidence.
The State concedes neither witness testimony nor documentary “evidence” was
presented to establish Defendant’s prior criminal history, and that statements made
to the court by the prosecutor and defense counsel constituted the only basis to find
Defendant had been convicted of two qualifying sexual offenses.
When the State called the case before the court, the following exchange
occurred:
PROSECUTOR: I have verified his complete criminal
history and I’ve verified the GPS arrangement with him.
THE COURT: All right. I’ll be happy to hear you ma’am.
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PROSECUTOR: Your Honor, he qualified for lifetime
satellite-based monitoring based on the fact that he is a
recidivist. He has two convictions. One 2006 for sexual
offense secondary attempted, and in 1989 he was convicted
of sexual offense again again [sic], second degree and
served a sentence . . . .
THE COURT: So you’re asking me to [impose] lifetime
satellite based monitoring?
PROSECUTOR: Yes, we are.
An unnamed probation officer was present “just to answer questions” and
responded to the court that Defendant was a “high risk of re-arrest, level 2, [and], the
Static 99 was moderate to low risk with a score of 3.” Defense counsel then addressed
the court and argued the imposition of lifetime SBM on Defendant is unreasonable
and unconstitutional, and also argued Defendant is not a recidivist as defined by the
statute.
Defense counsel stated during his argument to the court:
I would submit to the Court that it an (inaudible) factor
and especially in this case where he got two convictions,
one conviction that he required to register and the second
conviction that didn’t, would not had [sic] been based on
offense date or conviction date (inaudible) prior to have
satellite-based monitoring. He calls in (inaudible) released
from prison on or after the effective date of the new law or
portion of that.
Defense counsel later stated:
[G]iven the totality of circumstances as it applies to,
[Defendant] that it’s unreasonable, sir. He has two
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(inaudible) some years apart, one that didn’t even require
him to register. He served a period of time . . . in prison for
that, got out, and obviously, and Your Honor, can tell he
was not required to register for the first one and I have a
registration printout off . . . the website, doesn’t require
him to register for the first one. You can tell he didn’t
spend a tremendous amount of time in prison (inaudible).
Then fast forward to 2006 . . . and he’s convicted of
attempted second degree rape in Lenoir County, serves
several years in prison, gets out (inaudible), he’s on what I
presume is five years (inaudible). He’s being supervised.
They know where he is . . . . [W]hen you look at Static 99
he comes back as a (inaudible). This is not someone who
comes in with Static 99 who is at high risk for re-offending.
. . . Your Honor, . . . you can see in 1999 [sic] he was only
19 years old at the time. Very, very young.
The State argues Defendant’s counsel identified and discussed the prior
convictions at the SBM hearing in the course of his argument to the court. The State
asserts defense counsel’s argument was a stipulation and furnished the trial court
with sufficient “evidence” to conclude Defendant is a recidivist as defined by the
statute.
A. Required Proof
“An unilateral statement by the solicitor may not be considered as evidence.”
State v. Powell, 254 N.C. 231, 235, 118 S.E.2d 617, 620 (1961); see also State v. Wilson,
340 N.C. 720, 727, 459 S.E.2d 192, 196 (1995) (unsworn statement of the prosecutor
insufficient to support an award of restitution). Something more than unsworn
statements, which are unsupported by any documentation, is required as evidence
under the statute to allow the trial court to impose lifetime SBM on an individual.
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The State concedes no “evidence” was presented by the prosecutor to the trial court
of Defendant’s prior convictions.
The Supreme Court of the United States has recently reviewed and discussed
the search and seizure implications of North Carolina’s SBM program on an
individual’s freedom under the Fourth Amendment. Grady v. North Carolina, __ U.S.
__, __ 191 L. Ed. 2d 459, 461-62 (2015) (“The State’s [SBM] program is plainly
designed to obtain information. And since it does so by physically intruding on a
subject’s body, it effects a Fourth Amendment search.”)
This Court has previously explained: “A stipulation to prior convictions has
been held as sufficient for purposes of determining prior record level in felony
sentencing, which is a criminal proceeding; we believe that if this proof is sufficient
for sentencing purposes, it is also sufficient for purposes of SBM, which is a civil
regulatory proceeding.” State v. Arrington, 226 N.C. App. 311, 316, 741 S.E.2d 453,
457 (2013) (citing State v. Powell, 223 N.C. App. 77, 80, 732 S.E.2d 491, 494 (2012)).
The question before us is whether defense counsel’s statements to the court
constituted a stipulation to Defendant’s two prior convictions to allow the trial court
to impose lifetime SBM.
B. Defendant’s Stipulations
Our Supreme Court has held that a mere prior record level worksheet
submitted to the trial court by the State, is insufficient, standing alone, to establish
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a defendant’s prior record level. State v. Alexander, 359 N.C. 824, 827, 616 S.E.2d
914, 917 (2005). In numerous cases, this Court has addressed whether oral
statements of defense counsel constituted a stipulation to the defendant’s prior
convictions, which supports the defendant’s prior record level. An oral exchange
between defense counsel and the court following presentation of the prior record level
worksheet may constitute a stipulation the defendant obtained the prior convictions
as shown on the worksheet. Id. at 828-29, 616 S.E.2d at 917.
“‘While a stipulation need not follow any particular form, its terms must be
definite and certain in order to afford a basis for judicial decision, and it is essential
that they be assented to by the parties or those representing them. Silence, under
some circumstances, may be deemed assent . . . .’” Id. (quoting Powell, 254 N.C. at
234, 118 S.E.2d at 619).
In Alexander, the Court held that defense counsel’s statements to the court
demonstrated he “was cognizant of the contents of the worksheet, but also that he
had no objections to it.” Id. at 830, 616 S.E.2d at 918. See also State v. Eubanks, 151
N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002) (“[T]he statements made by the
attorney representing defendant in the present case may reasonably be construed as
a stipulation by defendant that he had been convicted of the charges listed on the
worksheet.”); State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000)
(defense counsel’s statement that there was no disagreement about the defendant’s
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prior convictions “might reasonably be construed as an admission by defendant that
he had been convicted of the other charges appearing on the prosecutor’s work sheet”).
In all the aforementioned cases, the State had presented the court with a prior
record level worksheet, which contained the date and a description of the prior
convictions, the classes of offense, the file numbers, and the county where each
conviction was obtained. Here, the State produced and presented nothing but a bare
oral assertion of Defendant’s prior convictions.
A statement by defense counsel may constitute a stipulation where it is
“definite and certain.” State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917
(2010). The State is statutorily required to “present to the court any evidence” that
the offender falls into one of the enumerated categories to impose SBM. N.C. Gen.
Stat. § 14-208.40A(a). Here, the State failed to present “evidence” or sufficient
information to allow Defendant to enter a “definite and certain” stipulation.
Mumford, 364 N.C. at 403, 699 S.E.2d at 917.
No evidence was presented to the trial court, upon which the court could have
determined Defendant had obtained the required prior sexual offense convictions to
be classified as a recidivist, and defense counsel’s statements and arguments did not
stipulate to the prior convictions. We vacate the trial court’s lifetime SBM order, and
remand for a proper evidentiary hearing, required by law. N.C. Gen. Stat. § 14-
208.40A(a)-(b).
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V. Conclusion
The State presented no evidence to support the trial court’s finding and
conclusion Defendant had two prior sexual offense convictions, which classifies him
as a recidivist, nor did Defendant enter a “definite and certain” stipulation on this
issue. Mumford, 364 N.C. at 403, 699 S.E.2d at 917. The trial court’s order is vacated
and this matter is remanded. In light of our holding, we do not address Defendant’s
remaining argument.
VACATED AND REMANDED.
Judges CALABRIA and DAVIS concur.
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