State v. Dye , 254 N.C. App. 161 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-778
Filed: 20 June 2017
Mitchell County, No. 14 CRS 50381
STATE OF NORTH CAROLINA
v.
JEFFERY L. DYE, JR.
Appeal by Defendant from judgment entered 25 February 2016 by Judge
William H. Coward in Superior Court, Mitchell County. Heard in the Court of
Appeals 20 February 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Margaret A.
Force, for the State.
Anne Bleyman for Defendant.
McGEE, Chief Judge.
Jeffery L. Dye, Jr. (“Defendant”) appeals from judgment entered after a jury
found him guilty of statutory rape. We find no error in Defendant’s trial, but vacate
the order imposing satellite-based monitoring for a period of thirty years due to a
violation of N.C. Gen. Stat. § 14-208.40A.
I. Background
The State’s evidence at trial tended to show the following: Defendant lived with
his fiancée, Heather Townsend (“Townsend”), in a mobile home park in Mitchell
County, North Carolina, in June 2013. Around that time, Defendant’s cousin, B.G.,
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Opinion of the Court
began living with Misty Briggs (“Briggs”), B.G.’s aunt and Defendant’s mother. At
the times relevant to the present case, Defendant was twenty-three years old and
B.G. was fourteen years old.
Shortly after B.G. began living with Briggs, Defendant called to ask if B.G.
would come to his mobile home to wash the dishes and babysit two of his children.
When B.G. arrived, she assisted Defendant in washing the dishes and putting the
children to bed. After the children were asleep, Defendant began telling B.G. about
an argument he had with Townsend earlier in the day, and B.G. listened “because no
one else was there for [Defendant].” While telling B.G. about the argument,
Defendant asked B.G. “if [she] wanted to have sex with him, and [B.G.] told him no
at first.” As B.G. explained at trial:
You know, [I told Defendant]. . . I don’t want to have sex
with you, this is wrong, and I was like if your girlfriend
finds out this is not going to look good at all, you know. And
so [Defendant] was undressing me, you know, like, he told
-- well, he told me to go put a bathing suit on and I was like
sure, you know, okay. I put a bathing suit on and we were
standing in the room, in his back bedroom, and yeah that’s
pretty much it. . . . [Defendant] undressed me from there,
and then that’s when [Defendant] raped me.
Upon further questioning, B.G. stated Defendant had engaged in vaginal intercourse
with her. The encounter continued for approximately an hour and a half, until
Townsend returned to the mobile home. At that point, Defendant stopped having sex
with B.G., gave her clothing to wear, and told her to not tell anyone because
“[Defendant] didn’t want to go into jail or . . . get in any trouble with the law[.]”
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Opinion of the Court
Despite Defendant’s warning, B.G. testified she told Briggs that Defendant had raped
her, but Briggs did not believe the accusation. B.G. eventually repeated the
allegation to her school counselor in August 2013, when school was back in session.
B.G. was examined by Dr. Kelly Rothe (“Dr. Rothe”) on 27 March 2014. At
trial, Dr. Rothe was accepted, without objection, as an expert in child sexual assault
and in child medical examinations. Dr. Rothe began B.G.’s medical examination by
asking B.G. a series of questions, and then performed a “head to toe” physical
examination, including an internal vaginal examination. Dr. Rothe testified, without
objection, that the examination revealed that the “posterior rim” of B.G.’s hymen was
“thinned, which would have been consistent with a vaginal penetration.” Elaborating
on the examination, again without objection, Dr. Rothe testified that when she
examined the posterior rim of B.G.’s hymen, it was “thinned,” and “was, in fact,
absent in what we call that 5 to 7 o’clock area, and that is the area that is most
suspicious for vaginal penetration in child abuse.” After discussing her findings, the
following colloquy between Dr. Rothe and the prosecutor occurred:
[Prosecutor:] . . . [A]fter conducting the investigation, Dr.
Roth[e], did you form any opinion regarding the possibility
of sexual abuse?
[Dr. Rothe:] Right, so, like I said that having an absent
hymen in that section of posterior rim is very suspicious for
sexual abuse. Just for your background, the only time that
as a clinical provider we can say sexual abuse happened is
if we see that hymen within three days of the sexual abuse,
and then we also track it [sic] healing. That’s why the
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Opinion of the Court
nomenclature becomes difficult because the hymen, like
the inside of the mouth, heals very quickly. But [B.G.’s]
exam with an absent posterior rim was very suspicious for
sexual abuse and with the disclosure of sexual abuse --
Defendant’s counsel then objected and argued that Dr. Rothe was able to “say . . . that
[her] findings support or are suspicious of, I think is what [Dr. Rothe] said, sexual
abuse” but was not able to “give an opinion about what [B.G.] said to [Dr. Rothe].”
After a protracted discussion with the prosecutor and Defendant’s counsel, the trial
court stated that Dr. Rothe “should not vouch for [B.G.’s] credibility.”
Upon further questioning, Dr. Rothe twice reiterated that the results of the
examination were “suspicious for vaginal penetration” due to the absence of the
posterior rim of B.G.’s hymen. On cross-examination, Dr. Rothe admitted the results
of her examination of B.G. were “suspicious but not conclusive” for vaginal
penetration and that, without a “baseline” examination of B.G. conducted before the
alleged abuse, it was “hard to tell” whether the trauma observed in the examination
was “normal to [B.G.] or not.”
Defendant was convicted of statutory rape and sentenced to a term of 254 to
365 months in prison. After sentencing Defendant, the trial court considered whether
satellite-based monitoring (“SBM”) was appropriate in an SBM hearing. The
prosecutor presented the results of Defendant’s Static-99 examination that indicated
a risk assessment of four points, placing Defendant in a “Moderate-High” risk
category. The trial court found that: (1) the offense was a sexually violent offense
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Opinion of the Court
pursuant to N.C. Gen. Stat. § 14-208.6(5); (2) Defendant “has not been classified as a
sexually violent predator;” (3) Defendant is not a recidivist; (4) the offense is not an
aggravated offense; and (5) the offense did involve the physical, mental, or sexual
abuse of a minor.
Based upon these findings, the trial court ordered Defendant to register as a
sex offender for a period of thirty years. The trial court then asked the prosecutor if
the decision to order Defendant to enroll in satellite-based monitoring was “in [the
trial court’s] discretion . . . [b]ecause of the score on the Static-99,” and the prosecutor
indicated that it was. After brief arguments from both the State and Defendant, the
trial court ordered Defendant to enroll in satellite-based monitoring for the duration
of the thirty year period that Defendant was to be registered as a sex offender. The
trial court memorialized these findings as a written order (“the SBM order”).
Defendant appeals.
II. Analysis
Defendant argues the trial court erred by: (1) allowing Dr. Rothe to improperly
bolster B.G.’s credibility; (2) failing to make adequate findings of fact in the SBM
order to support a determination that the highest possible level of supervision was
required; and (3) failing to determine whether enrollment in satellite-based
monitoring would violate Defendant’s Fourth Amendment right to be free from
unreasonable searches and seizures. Defendant also contends he received ineffective
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Opinion of the Court
assistance of counsel because his trial counsel failed to object to, and enter written
notice of appeal from, the SBM order.
A. Dr. Rothe’s Testimony
Defendant argues the trial court allowed Dr. Rothe to improperly bolster B.G.’s
credibility. Specifically, Defendant argues Dr. Rothe’s testimony that B.G.’s hymen
was “thin[ning] [or] absent in . . . that 5 to 7 o’clock area,” and that such a result was
consistent with penetration and was “most suspicious for vaginal penetration in child
abuse” improperly bolstered B.G.’s credibility. We disagree.1
Pursuant to N.C. Gen. Stat. § 8C-702(a), a qualified expert may testify as to
her opinion in her field of expertise if the testimony will assist the jury in
understanding the evidence. A trial court’s decision on the admissibility of an expert
opinion “will not be reversed on appeal absent a showing of abuse of discretion.” State
v. McGrady, 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (citations omitted). Generally,
an expert may not testify about the credibility of a witness or state that it is the
expert’s belief the defendant is innocent or guilty. State v. Heath, 316 N.C. 337, 341-
42, 341 S.E.2d 565, 568 (1986) (holding that “an expert’s expression of an opinion as
to the defendant’s guilt or innocence” is impermissible). Our Supreme Court has held
that “[t]he question of whether a witness is telling the truth is a question of credibility
1 Defendant and the State disagree about whether this argument has been properly preserved
for our full review, or whether plain error review is appropriate. Because we determine that Dr.
Rothe’s testimony did not improperly bolster B.G.’s credibility, we need not determine whether any
error amounted to plain error.
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Opinion of the Court
and is a matter for the jury alone.” State v. Solomon, 340 N.C. 212, 221, 456 S.E.2d
778, 784, cert. denied, 516 U.S. 996, 133 L. Ed. 2d 438, 116 S. Ct. 533 (1995).
In State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002), our Supreme Court
held, consistent with Solomon, that a “trial court should not admit expert opinion
that sexual abuse has in fact occurred because, absent physical evidence supporting
a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding
the victim’s credibility.” 355 N.C. at 266-67, 559 S.E.2d at 789 (emphasis in original)
(citations omitted). However, “an expert witness may testify, upon a proper
foundation, as to the profiles of sexually abused children and whether a particular
complainant has symptoms or characteristics consistent therewith.” Id. (citations
omitted).
In the present case, and after being accepted without objection as an expert in
child sexual assault and in child medical examinations, (T p 183-184) Dr. Rothe
explained the interview and physical examination she performed on B.G. Dr. Rothe
then testified that the results of her examination – which revealed that B.G.’s hymen
was “absent in . . . that 5 to 7 o’clock area” – was “most suspicious for vaginal
penetration in child abuse” and “very suspicious for sexual abuse.” Dr. Rothe also
testified about why the absence of the hymen in the posterior region is suspicious for
vaginal penetration, explaining that “the posterior rim [of a hymen] [is] less elastic”
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Opinion of the Court
than the anterior rim, such that “if there is vaginal penetration, it is the most likely
affected” area of the hymen.
Defendant directs this Court’s attention to State v. Trent, 320 N.C. 610, 359
S.E.2d 463 (1987) and State v. Parker, 111 N.C. App. 359, 432 S.E.2d 705 (1993) in
support of his position that Dr. Rothe’s testimony was improper. The testimony of
the experts in those cases, however, are materially different from Dr. Rothe’s
testimony in the present case. In Trent, the examining physician testified the victim’s
hymen was not intact, but otherwise the victim had no “lesions, tears, abrasions,
bleeding or otherwise abnormal conditions.” Id. at 613, 359 S.E.2d at 465. Based on
this evidence, and over the objection of the defendant, the physician testified it was
his belief that the victim had in fact been sexually abused. Id.
Similarly, in Parker, the examining physician testified “[i]t was [his] opinion
that [the victim] had been sexually abused over a long period of time[.]” Parker, 111
N.C. App. at 366, 432 S.E.2d 359, 709-10 (1993). This Court found that the testimony
was based only on an interview the physician completed with the victim, and the fact
that her hymenal ring was not intact. Id. In both cases, the reviewing court held
that the expert was in no better position than the jury to determine whether the
victim “was sexually abused,” and therefore held it was erroneous for the trial court
to admit the expert’s diagnosis of sexual abuse. Trent, 320 N.C. at 614-15, 359 S.E.2d
at 465-66; Parker, 111 N.C. App. at 366, 432 S.E.2d at 709-10.
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Opinion of the Court
In the present case, and unlike the experts in Trent and Parker, Dr. Rothe
made no definitive diagnosis that B.G. was a victim of sexual abuse. Instead, Dr.
Rothe detailed the examination she performed on B.G., and testified that the absence
of B.G.’s hymen in the 5-7 o’clock area was “suspicious” for vaginal penetration and
that “having an absent hymen in that section of posterior rim is very suspicious for
sexual abuse.” Dr. Rothe also appropriately cautioned that her findings, while
suspicious for vaginal penetration and sexual abuse, were not conclusive; Dr. Rothe
explained that “the only time . . . a clinical provider . . . can say sexual abuse happened
is if we see that hymen within three days of the sexual abuse[.]” Since Dr. Rothe had
not examined B.G. within three days of the alleged sexual abuse in this case, she
explained that the “nomenclature becomes difficult.” Dr. Rothe also readily conceded
on cross-examination that the gap of eight months between the alleged abuse and the
examination would “affect [Dr. Rothe’s] ability to determine some results” of her
examination; that there is “a lot of variation in what one would consider normal in
what a hymen of a prepubescent or pubescent girl looks like” and the appearance of
B.G.’s hymen could fall within that normal variation; and that conclusive results were
not possible without a “baseline” examination conducted before the alleged abuse.
Dr. Rothe further testified on cross-examination that the results of B.G.’s
examination were “suspicious but not conclusive” for vaginal penetration.
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Opinion of the Court
Given this testimony, it is clear that Dr. Rothe did not opine sexual abuse had
in fact occurred, but rather explained that the results of her examination merely
suggested that it had. Dr. Rothe’s testimony that the results of B.G.’s examination
were “suspicious” of vaginal penetration and sexual abuse is consistent with
testimony this Court has found to be permissible, including an expert’s opinion that
the results of an examination are “consistent with” sexual abuse. See, e.g., State v.
Goforth, 170 N.C. App. 584, 589-90, 614 S.E.2d 313, 316-17 (2005); see also State v.
Dick, 126 N.C. App. 312, 314-16, 485 S.E.2d 88, 90 (1997) (finding no error in expert
testimony that sexual abuse was “very likely” where there was physical evidence of
the abuse, and distinguishing Trent and Parker, where there was no physical
evidence of sexual abuse). Accordingly, we hold the trial court did not abuse its
discretion in admitting the challenged testimony, as that testimony did not
improperly bolster the credibility of B.G.
B. SBM Hearing Procedure; Violation of N.C. Gen. Stat. § 14-208.40A
Defendant contends the trial court erred by ordering him to enroll in the SBM
program for a period of thirty years without sufficient findings of fact that Defendant
required the highest possible level of supervision and monitoring, and that such a
failure violated the statutory mandate of N.C. Gen. Stat. § 14-208.40B. Def. Br p
16-17. As Defendant concedes, he only gave oral notice of appeal at the conclusion of
his sentencing hearing, and did not file a written notice of appeal from the trial court’s
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Opinion of the Court
SBM order. This Court has “interpreted SBM hearings and proceedings as civil, as
opposed to criminal, actions, for purposes of appeal. Therefore, ‘a defendant must
give [written] notice of appeal pursuant to N.C. R. App. P. 3(a),’ from an SBM
proceeding.” State v. Springle, ___ N.C. App. ___, ___, 781 S.E.2d 518, 520 (2016)
(quoting State v. Brooks, 204 N.C. App. 193, 194-95, 693 S.E.2d 204, 206 (2010)).
Failure to comply with N.C.R. App. P. 3 is a jurisdictional default “that prevents this
Court from acting in any manner other than to dismiss the appeal.” Id. (citation
omitted).
Recognizing the defect in his notice of appeal, Defendant has petitioned this
Court for a writ of certiorari to consider his argument regarding, inter alia, the
sufficiency of the findings of fact in the SBM order. A writ of certiorari “may be issued
in appropriate circumstances by either appellate court to permit review of the
judgments and orders of trial tribunals when the right to prosecute an appeal has
been lost by failure to take timely action[.]” N.C.R. App. P. 21(a)(1). In our discretion,
we grant certiorari and consider Defendant’s argument.
In addition to the jurisdictional defect created by Defendant’s failure to
properly file a written notice of appeal, the State contends Defendant’s argument
regarding the sufficiency of the findings of fact in the SBM order is also unpreserved
due to Defendant’s failure to object when the SBM matter was heard, and contends
this Court may only consider this argument by invoking N.C.R. App. P. 2. We
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Opinion of the Court
disagree that invocation of N.C.R. App. P. 2 is necessary. N.C. Gen. Stat. § 15A-
1446(d) provides that when a defendant asserts that a “sentence imposed was
unauthorized at the time imposed, exceeded the maximum authorized by law, was
illegally imposed, or is otherwise invalid as a matter of law[,]” appellate review of
such errors may be obtained regardless of whether an objection was made at trial.
N.C. Gen. Stat. § 15A-1446(d)(18) (2015); see also State v. Hunt, 221 N.C. App. 48, 53,
727 S.E.2d 584, 588-89 (2012). 2 Therefore, Defendant’s argument was preserved,
notwithstanding his failure to object in the trial court, and we proceed to the merits
of Defendant’s argument.
While Defendant contends that this case is controlled by the sentencing
procedures set forth in N.C. Gen. Stat. § 14-208.40B, we find that the procedures set
forth in N.C. Gen. Stat. § 14-208.40A are applicable. This Court has held that
N.C.G.S. § 14-208.40B applies “in cases in which the offender has been convicted of
an applicable conviction and the trial court has not previously determined whether
the offender must be required to enroll in SBM.” State v. Kilby, 198 N.C. App. 363,
367, 679 S.E.2d 430, 432-33 (2009); see also N.C. Gen. Stat. § 14-208.40B(a) (2015).
N.C.G.S. § 14-208.40A, on the other hand, applies in cases in which the SBM
determination was made “during the sentencing phase.” N.C. Gen. Stat. § 14-
2 While not controlling, we note that this Court has held, in a recent unpublished opinion, that
N.C.G.S. § 15A-1446(d)(18) preserved a defendant’s right to appeal an SBM order when the defendant
failed to object at the SBM hearing. See State v. Egan, ___ N.C. App. ___, ___ S.E.2d ___, 2016 N.C.
App. LEXIS 148, at *5-6 (2016) (unpublished).
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Opinion of the Court
208.40A(a); see also Kilby, 198 N.C. App. at 367, 679 S.E.2d at 432 (noting that the
procedure set forth in N.C. Gen. Stat. § 14-208.40A “applies in cases in which the
district attorney has requested that the trial court consider SBM during the
sentencing phase of an applicable conviction”). The SBM determination in the
present case was made at the time Defendant was sentenced; therefore, N.C.G.S. §
14-208.40A controls.
When an offender is convicted of a “reportable conviction” as that term is
defined by N.C. Gen. Stat. § 14-208.6(4), N.C.G.S. § 14-208.40A(a) instructs that the
district attorney
shall present to the court any evidence that (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. 14-27.23 or G.S.
14-27.28, or (v) the offense involved the physical, mental,
or sexual abuse of a minor.
N.C. Gen. Stat. § 14-208.40A(a) (2015). Once this evidence has been presented, the
trial court must determine “whether the offender’s conviction places the offender in
one of the categories described in G.S. 14-208.40(a), and if so, shall make a finding of
fact of that determination, specifying” in which of the five categories listed in N.C.G.S.
§ 14-208.40A(a) the offense fits. N.C. Gen. Stat. § 14-208.40A(b). Then, and as
relevant to the present case,
[i]f the court finds that the offender committed an offense
that involved the physical, mental, or sexual abuse of a
minor, that the offense is not an aggravated offense or a
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Opinion of the Court
violation of G.S. 14-27.23 or G.S. 14-27.28 and the offender
is not a recidivist, the court shall order that the Division of
Adult Correction do a risk assessment of the offender.
N.C. Gen. Stat. § 14-208.40A(d) (2015). After receiving the risk assessment from the
Division of Adult Correction, the trial court must “determine whether, based on the
Division of Adult Correction’s risk assessment, the offender requires the highest
possible level of supervision and monitoring.” N.C. Gen. Stat. § 14-208.40A(e) (2015).
A “Moderate-High” risk assessment “still constitutes ‘Moderate’ for the purposes of
our precedent,” State v. Smith, ___ N.C. App. ___, ___ n.1, 769 S.E.2d 838, 840 n.1
(2015), and a “risk assessment of ‘moderate,’ without more, is insufficient to support
the finding that a defendant requires the highest possible level of supervision and
monitoring.” State v. Green, 211 N.C. App. 599, 601, 710 S.E.2d 292, 294 (2011)
(emphasis in original). “If the court determines that the offender does require the
highest possible level of supervision and monitoring, the court shall order the offender
to enroll in a satellite-based monitoring program for a period of time to be specified
by the court.” N.C.G.S. § 14-208.40A(e).
In the present case, Defendant was convicted of statutory rape in violation of
N.C. Gen. Stat. § 14-27.7A(a), and the trial court found as fact that such conviction
was one of the categories described in N.C. Gen. Stat. § 14-208.40(a).3 The trial court
3 One of the “categories described” in N.C.G.S. § 14-208.40(a) is “an offender [who] is convicted
of a reportable conviction as defined by G.S. 14-208.6(4)[.]” N.C. Gen. Stat. § 14-208.40(a). N.C. Gen.
Stat. § 14-208.6(4), in turn, defines “reportable conviction” as, inter alia, “a sexually violent offense.”
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Opinion of the Court
further found as fact that: (1) Defendant had not been classified as a sexually violent
predator under the procedure set out in N.C. Gen. Stat. § 14-208.20; (2) Defendant
was not a recidivist; (3) the offense was not an aggravated offense; and (4) the offense
did involve the physical, mental, or sexual abuse of a minor. Given these findings,
all undisputed, Defendant’s offense falls within N.C.G.S. § 14-208.40A(d) and (e), that
required the Division of Adult Correction to complete a risk assessment.
The Static-99 in the present case revealed a risk assessment of four points,
which translated into a “Moderate-High” risk category. Pursuant to Smith and
Green, a “Moderate-High” risk category was insufficient to support a finding that the
highest possible level of supervision and monitoring was required. Smith, ___ N.C.
App. at ___ n.1, 769 S.E.2d at 840 n.1; Green, 211 N.C. App. at 601, 710 S.E.2d at 294.
Nevertheless, the trial court found that Defendant required the highest possible level
of supervision and monitoring “based on the risk assessment of the Division of Adult
Correction,” and did not make any further findings of fact as to why SBM was
appropriate. This finding was in error, and requires us to vacate the SBM order.4
N.C. Gen. Stat. § 14-208.6(4). Sexually violent offense is, in turn, defined as including, inter alia, “a
violation of . . . G.S. 14-27.25(a).” N.C. Gen. Stat. § 14-208.6(5). N.C.G.S. § 14-27.7A, of which
Defendant was convicted, was later recodified at N.C. Gen. Stat. § 14-27.25(a) in 2015. See 2015 N.C.
Sess. Laws ch. 181 § 7(a). Therefore, Defendant’s conviction qualified as a reportable conviction.
4 Defendant asks this Court to “reverse” the SBM order rather than “vacate” it. While there
is some support for reversal rather than vacatur in our precedent, see, e.g., Kilby, 198 N.C. App. 363,
370-71, 679 S.E.2d 430, 434-35 (2009), in cases where this Court has chosen to remand the matter for
further proceedings – which as explained below, we do here – this Court has chosen to “vacate” the
SBM order. E.g., State v. Thomas, 225 N.C. App. 631, 634-35, 741 S.E.2d 384, 387 (2013). Following
that precedent, we do the same.
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Opinion of the Court
Relying on State v. Causby, 200 N.C. App. 113, 117, 683 S.E.2d 262, 265 (2009),
Defendant argues this Court should simply vacate the order without remand to the
trial court for further findings of fact regarding the appropriate level of supervision.
In Causby, the Court noted that the defendant’s risk assessment was “moderate,” and
that the trial court’s finding “that the defendant requires the highest possible level of
supervision and monitoring” was inappropriate considering no additional findings of
fact were made. Id. at 115-16, 683 S.E.2d at 264. Relying on this Court’s previous
decision in State v. Kilby, 198 N.C. App. 363, 679 S.E.2d 430 (2009), this Court
considered whether remand for further findings of fact was appropriate:
The State did not present evidence which could support a
finding that “defendant requires the highest possible level
of supervision and monitoring.” The DOC assessment of
defendant rated him as a moderate risk. The State’s other
evidence indicated that defendant was fully cooperating
with his post release supervision, which might support a
finding of a lower risk level, but not a higher one. As no
evidence was presented which tends to indicate that
defendant poses a greater than “moderate” risk or which
would demonstrate that “defendant requires the highest
possible level of supervision and monitoring[,]” we need not
remand this matter to the trial court for additional findings
of fact as requested by the State. Consequently, we reverse
the trial court’s order.
Causby, 200 N.C. App. at 116, 683 S.E.2d at 264 (quoting Kilby, 198 N.C. App. at 370,
679 S.E.2d at 434).
We find the present case distinguishable from Causby and Kilby. In the
present case, the trial court assumed – and the prosecution agreed, incorrectly – that
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Opinion of the Court
Defendant’s risk assessment score on the Static-99 left the decision whether to impose
satellite-based monitoring within the trial court’s discretion. The prosecution
nevertheless attempted to present additional evidence at the SBM hearing that the
highest level of supervision and monitoring was required, but was not permitted by
the trial court to do so:
[Prosecutor]: Your Honor, the state would ask that
[Defendant], we find that he does require the highest level
of supervision. Your Honor, [Defendant] was a, I think it
was four points which is moderate to high. In addition to
that, [Defendant] is a person who has committed a very
serious –
THE COURT: I know that. Just argue to me about the time
period.
Because the State was not permitted to complete its argument regarding additional
factors that made, in the State’s view, the highest level of supervision and monitoring
appropriate, we are unable to determine if that evidence “could support a finding that
‘defendant requires the highest possible level of supervision and monitoring.’”
Causby, 200 N.C. App. at 116, 683 S.E.2d at 264. Given that the State attempted to
introduce additional evidence regarding whether the highest level of supervision and
monitoring was required, but was unable to do so, we find the present case
distinguishable from Causby and Kilby. We therefore remand to the trial court for
further findings of fact as to whether the highest possible level of supervision and
monitoring is appropriate.
C. Defendant’s Remaining Arguments
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Opinion of the Court
In light of our determination that the SBM order must be vacated and
remanded for a new hearing, we do not address Defendant’s argument that the SBM
order must also be vacated because enrollment in SBM violated Defendant’s right to
be free from unreasonable searches under the Fourth Amendment and the United
States Supreme Court’s decision in Grady v. North Carolina, ___ U.S. ___, 191 L. Ed.
2d 459 (2015). We also dismiss Defendant’s argument that he received ineffective
assistance of counsel (“IAC”), as our allowance of certiorari and vacatur of the SBM
order renders that argument moot. See In re K.C., 226 N.C. App. 452, 463, 742 S.E.2d
239, 246-47 (2013) (declaring an appellant’s IAC claim premised on trial counsel’s
failure to properly preserve an argument for appellate review to be moot when the
unpreserved argument was addressed and found to be meritorious, notwithstanding
improper preservation).
NO ERROR IN PART; DISMISSED IN PART; VACATED AND REMANDED
IN PART.
Judges HUNTER, JR. and DAVIS concur.
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