State v. Whitehead ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-737
NORTH CAROLINA COURT OF APPEALS
Filed: 17 February 2015
STATE OF NORTH CAROLINA
v. Craven County
No. 01 CRS 53730
RICKY DARNELL WHITEHEAD,
Defendant.
Appeal by defendant from order entered 6 September 2013 by
Judge Kenneth F. Crow in Craven County Superior Court. Heard in
the Court of Appeals 5 November 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joseph Finarelli, for the State.
Ryan McKaig for defendant-appellant.
DIETZ, Judge.
After serving his sentence for a second-degree rape
conviction, the trial court ordered Defendant Ricky Darnell
Whitehead to submit to satellite-based monitoring for a period
of ten years. Whitehead appeals from that order, arguing that
the trial court’s findings do not support imposition of
satellite-based monitoring, the strictest form of supervision
and monitoring for convicted sex offenders.
-2-
For the reasons discussed below, we hold that the trial
court properly considered the facts underlying Whitehead’s
conviction in making its findings and that those findings
support imposition of satellite-based monitoring under our
precedent. Accordingly, we affirm the trial court’s order.
Facts and Procedural History
On 29 January 2002, Whitehead pleaded guilty to second-
degree rape in exchange for dismissal by the State of a
statutory rape charge. At the time of the underlying offense,
Whitehead was thirty-six years old. The victim was a thirteen-
year-old foster child who lived with Whitehead’s aunt.
Whitehead, who had obtained the status of a habitual felon, was
sentenced to an active term of imprisonment of 133 to 169
months.
More than ten years later, on 16 January 2013, Whitehead
received a notice from the North Carolina Department of Public
Safety requiring him to attend a hearing to determine whether he
was eligible to submit to satellite-based monitoring. In
conjunction with this hearing, on 11 February 2013, Whitehead
completed a STATIC-99 evaluation, a test created by the
Department of Correction to assess a sex offender’s risk of
reoffending. The STATIC-99 considers such factors as the
-3-
offender’s age, number of prior sex offenses, other convictions
for violent offenses, and whether any of the victims were
strangers or unrelated to the defendant. Whitehead received a
score of 3 on the assessment, placing him in the “Moderate-Low”
range for risk of reoffending.
At the 22 April 2013 hearing in the Craven County Superior
Court, the parties contested the admissibility of a pre-sentence
diagnostic report that had been prepared in 2002. This report
included facts about Whitehead’s education, employment, mental
health, and family background, along with information about his
conduct while incarcerated. The State asked the trial court to
consider from this report the age disparity between Whitehead
and the victim, as well as the fact that the victim was a foster
child living in the home of Whitehead’s aunt at the time of the
offense. Defense counsel did not object to the introduction of
this particular evidence from the report, and acknowledged that
such facts were indeed “relevant in this case.”
After the hearing, on 6 September 2013, the court
determined that Whitehead was eligible to enroll in satellite-
based monitoring. In addition to finding that Whitehead was
convicted of an offense involving the physical, mental, or
-4-
sexual abuse of a minor, the trial court made the following
findings of fact:
1) Age difference between the defendant
and the victim at the time of the crime.
The victim was thirteen (13) and the
defendant was thirty-five (35);
2) The defendant was aware the victim was
in foster care at his Aunt’s home and took
advantage of the victim.
The court incorporated by reference the STATIC-99 report placing
Whitehead in the “Moderate-Low” range, the 2002 pre-sentencing
report, and the information in the notice of hearing. The court
then concluded that Whitehead “requires the highest possible
level of supervision and monitoring” and ordered him to enroll
in the satellite-based monitoring program for a period of ten
years. Whitehead appeals from this order.
Analysis
On appeal from a satellite-based monitoring order, “we
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. Kilby, 198 N.C. App. 363,
367, 679 S.E.2d 430, 432 (2009) (citation and internal quotation
marks omitted). The trial court is statutorily required to make
-5-
findings of fact to support its legal conclusions. Id. at 366,
679 S.E.2d at 432; see also N.C. Gen. Stat. § 14-208.40B (2013).
Moreover, where a defendant receives a low to moderate score on
the risk assessment, the trial court must make additional
findings of fact before ordering the defendant to submit to
satellite-based monitoring, which is the highest level of
supervision and monitoring. Kilby, 198 N.C. App. at 369-70, 679
S.E.2d at 434.
Here, the trial court found that Whitehead qualified for
supervision and monitoring and also made additional findings
supporting imposition of ten years of satellite-based
monitoring. Whitehead first argues that the trial court’s
additional findings supporting satellite-based monitoring are
impermissible because “the additional findings all related to
the facts of the particular offense for which Mr. Whitehead was
initially convicted and which made him subject to satellite-
based monitoring.” Whitehead contends that trial courts cannot
consider the facts of the underlying conviction itself as part
of the “additional findings” necessary to impose satellite-based
monitoring.
This argument is precluded by our decision in State v.
Green, 211 N.C. App. 599, 710 S.E.2d 292 (2011). In Green, this
-6-
Court 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 convicted of an offense involving the physical,
mental, or sexual abuse of a minor.” Id. at 603, 710 S.E.2d at
295.1 We therefore held “that it was not error for the trial
court to consider the factual context of [a defendant’s]
conviction in making its additional findings” and imposing 5
years of satellite based monitoring. Id. Because it is
permissible for a trial court to consider the facts underlying a
defendant’s conviction in making the additional findings
necessary to impose satellite-based monitoring, we reject
Whitehead’s argument.
Whitehead next argues that the “additional findings” by the
trial court do not support imposition of the highest level of
supervision and monitoring. Whitehead contends that the two
findings—the disparity in age between Whitehead and the victim
and the fact that Whitehead took advantage of the victim, whom
he knew to be a foster child living in his aunt’s home—do not
adequately support the legal conclusion that he must enroll in
1
Whitehead does not dispute on appeal that he was convicted of
“an offense involving the physical, mental, or sexual abuse of a
minor.”
-7-
satellite-based monitoring for ten years. Again, we conclude
that this argument is precluded by our precedent.
In State v. Jarvis, 214 N.C. App. 84, 99, 715 S.E.2d 252,
261 (2011), this Court held that findings nearly
indistinguishable from those in this case supported imposition
of satellite-based monitoring. In Jarvis, the trial court made
two findings that this Court held to be supported by competent
evidence: (1) “[t]hat the defendant took advantage of his
position of trust noting that the victim looked upon him as a
father figure”; and (2) “[t]hat the defendant took advantage of
the victim's vulnerability when at the time the victim had a
strained relationship with her father and looked to the
defendant for support and comfort.” Id. at 95, 715 S.E.2d at
259. This Court then held that a third finding was not
supported by competent evidence, and that a fourth finding
required further consideration by the trial court. Id. at 95-
99, 715 S.E.2d at 259-61.
Because this Court held that one finding was unsupported by
the evidence and that a second required more detailed
explanation, it was necessary to remand the case to the trial
court for a new hearing. Id. But in doing so, this Court held
that evidence concerning the victim’s young age and
-8-
vulnerability, and defendant’s position of trust, “could support
findings of fact which could lead to a conclusion that ‘the
defendant requires the highest possible level of supervision and
monitoring.’” Id. at 99, 715 S.E.2d at 261 (emphasis in
original). In other words, this Court held that findings on
those two grounds, standing alone, could support imposition of
satellite-based monitoring. It remanded the matter for
additional explanation of a third finding and to reconsider the
duration and other specific details of the monitoring in light
of the changed findings.
Under Jarvis, we must affirm the trial court’s imposition
of satellite-based monitoring in this case. Here, as in Jarvis,
the trial court found that the Defendant had abused a position
of trust to take advantage of a vulnerable juvenile victim.
Specifically, the trial court found that there was a significant
age disparity between Whitehead and the victim and that
Whitehead “was aware the victim was in foster care at his Aunt’s
home and took advantage of the victim.” This Court held that
nearly identical findings could support imposition of satellite-
based monitoring in Jarvis. One panel of this Court cannot
overturn another, In re Civil Penalty, 324 N.C. 373, 384, 379
-9-
S.E.2d 30, 37 (1989), and thus we are bound by the Jarvis
holding and must affirm the trial court’s order in this case.
AFFIRMED.
Judges BRYANT and DILLON concur.
Report per Rule 30(e).