An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
