Opinion
No. COA12–1310.
2013-06-18
STATE of North Carolina v. Henry Tyrone RANDOLPH.
Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
On writ of certiorari to review order entered 13 October 2011 by Judge Jack W. Jenkins in Wayne County Superior Court. Heard in the Court of Appeals 3 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
ELMORE, Judge.
On 2 July 2012, defendant filed a petition for writ of certiorari in this Court seeking review of the trial court's order requiring him to register as a sex offender and enroll in a satellite-based monitoring (SBM) program for the duration of his natural life. By order entered 24 July 2012, we allowed defendant's petition. After careful review, we reverse the order of the trial court and remand the matter for further proceedings.
On 13 October 2011, a jury found defendant guilty of second-degree sexual offense. The trial court sentenced defendant to an active term of 83 to 109 months imprisonment. The trial court also conducted a hearing to determine defendant's eligibility for sex offender registration and SBM. The trial court entered an order finding that defendant had been convicted of a reportable conviction. Next, the trial court found that defendant was not a sexually violent predator or a recidivist; however, the trial court did find that defendant was convicted of an aggravated offense. The trial court also found that the offense involved the physical, mental, or sexual abuse of a minor. Based upon its findings, the trial court ordered defendant to register as a sex offender and enroll in SBM upon his release from prison for the duration of his natural life.
On appeal, defendant argues that the trial court erred in concluding defendant's offense was an “aggravated offense” and in ordering him to register as a sex offender and enroll in SBM upon his release from prison for the duration of his natural life. Defendant argues that the elements of second-degree sexual offense do not meet the statutory definition of an aggravated offense as defined by N.C. Gen.Stat. § 14–208.6(1a). The State concedes that second-degree sexual offense is not an aggravated offense and agrees that the trial court's order should be reversed. The State, however, contends that the case should be remanded for further proceedings to determine whether defendant is subject to sex offender registration and SBM for a shorter period of time. We agree.
Pursuant to N.C. Gen.Stat. § 14–208.40A, a trial court is required to first determine whether the defendant was convicted of a reportable offense. If the trial court finds that the defendant was convicted of a reportable offense, then the trial court must determine whether the defendant falls into one of the following five categories: “(i) the offender has been classified as a sexually violent predator pursuant to G.S. 14–208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense was a violation of G.S. 14–27.2A or G.S. 14–27.4A, or (v) the offense involved the physical, mental, or sexual abuse of a minor.” N.C. Gen.Stat. § 14–208.40A(b) (2012). If the trial court finds that the defendant falls into one of the first four categories, the trial court “shall order the offender to enroll in a satellite-based monitoring program for life.” N.C. Gen.Stat. § 14–208.40A(c) (2012).
If the trial court determines that the defendant does not fall into one of the first four categories, but that the defendant did commit an offense which involves the physical, mental, or sexual abuse of a minor, the trial court is required to order the Department of Correction (the Department) to complete a risk assessment on the offender. N.C. Gen.Stat. § 14–208.40A(d) (2012). Upon receipt of the risk assessment, the court is required to determine “whether, based on the Department's risk assessment, the offender requires the highest possible level of supervision and monitoring.” N.C. Gen.Stat. § 14–208.40A(e) (2012). If the trial court determines that the defendant requires the highest level of monitoring, the trial court “shall order the offender to enroll in a satellite-based monitoring program for a period of time to be specified by the court.” Id.
Here, the trial court correctly found that second-degree sexual offense is a reportable conviction as defined by N.C. Gen.Stat. § 14–208.6(4). However, at the next step, the trial court found that the offense for which defendant was convicted of was an “aggravated offense.” The trial court erred in making this finding.
North Carolina General Statute § 14–208.6(1a) defines “aggravated offense” as any criminal offense which includes either “(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) (2012). Thus, under either prong of the definition, penetration is necessary to a finding that the offense is aggravated. In State v.. Davison, 201 N.C.App. 354, 364, 689 S.E.2d 510, 517 (2009), disc. review denied,364 N.C. 599, 703 S.E.2d 738 (2010), we held that in determining whether an offense is an aggravated offense, “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 giving rise to the conviction.” Id.
In this case, defendant was convicted of second-degree sexual offense in violation of N.C. Gen.Stat. § 14–27.5, which provides:
(a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act 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 that the other person is mentally disabled, mentally incapacitated, or physically helpless.
N.C. Gen.Stat. § 14–27.5(a) (2009). “Proof of a ‘sexual act’ ... does not require, but may involve, penetration.” State v.. Hoover, 89 N.C.App. 199, 208, 365 S.E.2d 920, 926,cert. denied, 323 N.C. 177, 373 S.E.2d 118 (1988) (citation omitted). Accordingly, a conviction of second-degree sexual offense may or may not involve penetration. See State v. Phillips, 203 N.C.App. 326, 330, 691 S.E.2d 104, 107 (applying the same reasoning in determining whether felonious child abuse constitutes an aggravated offense under N.C. Gen.Stat. § 14–208.6(1a)), disc. review denied,364 N.C. 439, 702 S.E.2d 794 (2010).
“[W]ithout a review of the underlying factual scenario giving rise to the conviction, which is prohibited under Davison,” the trial court could not determine whether defendant's second-degree sexual offense included a sexual act involving penetration and thus constituted an aggravated offense. Id. at 330,691 S.E.2d at 107 (internal quotation and citation marks omitted). Based on the foregoing, we must reverse the order of the trial court and remand the case for further proceedings. The trial court has already found that defendant committed an offense involving the physical, mental, or sexual abuse of a minor. Thus, on remand, the trial court must order the Department to conduct a risk assessment. Thereafter, the trial court is required to determine whether defendant requires the highest level of supervision and monitoring. SeeN.C. Gen.Stat. § 14–208.40A(d), (e) (2012).
Defendant also challenges the trial court's conclusion that he must register as a sex offender upon his release from prison for the duration of his natural life. The trial court found that defendant was not a recidivist or a sexually violent predator; therefore, the trial court ordered lifetime registration based on its finding that defendant was convicted of an aggravated offense. SeeN.C. Gen.Stat. § 14–208.23 (2009) (mandating lifetime registration for an offender who is a recidivist, is convicted of an aggravated offense, or is classified as a sexually violent predator). Because the trial court's finding that defendant was convicted of an aggravated offense was in error, we must conclude that the trial court's order requiring defendant to register as a sex offender for the duration of his natural life was also in error. See Phillips, 203 N.C.App. at 331, 691 S.E.2d at 108. However, on remand, we note that the trial court is not precluded from ordering registration for a period of at least 30 years since defendant was convicted of a reportable offense. SeeN.C. Gen.Stat. § 14–208.7 (2012). We reverse the order of the trial court and remand the case for further proceedings consistent with this opinion.
Reversed and remanded. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).