                                 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 LEXIS 711 (2004) (unpublished).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.
