             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-377

                               Filed: 18 October 2016

Pitt County, No. 15 CRS 2559

STATE OF NORTH CAROLINA

            v.

ERIC MOORE


      Appeal by defendant from order entered 27 October 2015 by Judge Thomas D.

Haigwood in Pitt County Superior Court.       Heard in the Court of Appeals 21

September 2016.


      Attorney General Roy Cooper, by Special Deputy Attorney General Joseph
      Finarelli, for the State.

      William D. Spence for defendant-appellant.


      TYSON, Judge.


      Eric Moore (“Defendant”) appeals from the trial court’s order, which imposed

satellite-based monitoring (“SBM”) for the remainder of Defendant’s natural life. We

reverse the SBM order, and remand.

                                  I. Background

      On 27 October 2015, Defendant appeared before the trial court for a

determination of whether he should be required to enroll in the SBM program

pursuant to N.C. Gen. Stat. § 14-208.40(a). The prosecutor orally informed the court
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that Defendant had two relevant prior convictions. According to the prosecutor’s

statement, Defendant was convicted of second-degree sexual offense in 1989. In 2006,

Defendant was convicted of attempted second-degree sexual offense. The trial court

found Defendant is a recidivist, and ordered him to enroll in SBM for the remainder

of his natural life.

                                       II. Issues

       Defendant argues the trial court erred by: (1) finding that Defendant obtained

two prior convictions and he is a recidivist, where the findings are not supported by

competent evidence; and (2) finding both of Defendant’s prior convictions are

“reportable convictions” under N.C. Gen. Stat. § 208.6(4) where both offenses occurred

prior to 1 December 2006.

                               III. Standard of Review

       “[W]e review the trial court’s findings of fact [of an order on SBM] 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 quotation marks omitted). This

Court reviews the trial court’s interpretation and application of the statutory

procedure to impose SBM de novo. State v. Davison, 201 N.C. App. 354, 357, 689

S.E.2d 510, 513 (2009), disc. review denied, 364 N.C. 599, 703 S.E.2d 738 (2010).



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                     IV. Evidence of Defendant’s Prior Convictions

         Defendant argues the trial court erred by finding he is a recidivist, where the

only evidence the State presented to the court was the oral statement of the

prosecutor that Defendant had obtained reportable offenses in 1989 and 2006. We

agree.

         If an individual has been convicted of certain “reportable” offenses as defined

by N.C. Gen. Stat. § 14-208.6(4) and no prior court has determined whether he is

required to enroll in SBM, the Department of Adult Corrections is required to make

an initial determination of whether the offender falls into one of the three alternate

categories set forth in N.C. Gen. Stat. § 14-208.40(a). N.C. Gen. Stat. § 14-208.40B(a)

(2015).

         If the Department of Adult Corrections preliminarily determines the

individual meets the criteria for SBM enrollment, prior notice is provided, and the

matter is scheduled to be heard before the superior court. N.C. Gen. Stat. § 14-

208.40B(b). “At the hearing, the court shall determine if the offender falls into one of

the categories described in [N.C. Gen. Stat. §] 14-208.40(a). The court shall hold the

hearing and make findings of fact pursuant to [N.C. Gen. Stat. §] 14-208.40A.” N.C.

Gen. Stat. § 14-208.40B(c) (2015).

         N.C. Gen. Stat. § 14-208.40A sets forth the procedures the trial court must

follow to determine whether the offender meets the requirements for the court to



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order SBM. The statute provides the “district attorney shall present to the court any

evidence” that the offender falls into one of the enumerated categories. N.C. Gen. Stat.

§ 14-208.40A(a) (2015) (emphasis supplied). “After receipt of the evidence from the

parties, the court shall determine whether the offender’s conviction places the

offender in one of the categories described in [N.C. Gen. Stat. §] 14-208.40(a).” N.C.

Gen. Stat. § 14-208.40A(b) (emphasis supplied).

      Neither the Judgment and Commitment for Defendant’s 1989 conviction, nor

his 2006 conviction, or any certified transcript of Defendant’s prior offenses, were

offered into evidence at the SBM hearing. These records were also not contained in

the Pitt County Clerk of Court’s file for this hearing. Defendant’s “Computerized

Criminal History,” contained in the record on appeal, was also not offered into

evidence.

      The State concedes neither witness testimony nor documentary “evidence” was

presented to establish Defendant’s prior criminal history, and that statements made

to the court by the prosecutor and defense counsel constituted the only basis to find

Defendant had been convicted of two qualifying sexual offenses.

      When the State called the case before the court, the following exchange

occurred:

             PROSECUTOR: I have verified his complete criminal
             history and I’ve verified the GPS arrangement with him.

             THE COURT: All right. I’ll be happy to hear you ma’am.


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             PROSECUTOR: Your Honor, he qualified for lifetime
             satellite-based monitoring based on the fact that he is a
             recidivist. He has two convictions. One 2006 for sexual
             offense secondary attempted, and in 1989 he was convicted
             of sexual offense again again [sic], second degree and
             served a sentence . . . .

             THE COURT: So you’re asking me to [impose] lifetime
             satellite based monitoring?

             PROSECUTOR: Yes, we are.

      An unnamed probation officer was present “just to answer questions” and

responded to the court that Defendant was a “high risk of re-arrest, level 2, [and], the

Static 99 was moderate to low risk with a score of 3.” Defense counsel then addressed

the court and argued the imposition of lifetime SBM on Defendant is unreasonable

and unconstitutional, and also argued Defendant is not a recidivist as defined by the

statute.

      Defense counsel stated during his argument to the court:

             I would submit to the Court that it an (inaudible) factor
             and especially in this case where he got two convictions,
             one conviction that he required to register and the second
             conviction that didn’t, would not had [sic] been based on
             offense date or conviction date (inaudible) prior to have
             satellite-based monitoring. He calls in (inaudible) released
             from prison on or after the effective date of the new law or
             portion of that.

Defense counsel later stated:

             [G]iven the totality of circumstances as it applies to,
             [Defendant] that it’s unreasonable, sir. He has two


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             (inaudible) some years apart, one that didn’t even require
             him to register. He served a period of time . . . in prison for
             that, got out, and obviously, and Your Honor, can tell he
             was not required to register for the first one and I have a
             registration printout off . . . the website, doesn’t require
             him to register for the first one. You can tell he didn’t
             spend a tremendous amount of time in prison (inaudible).
             Then fast forward to 2006 . . . and he’s convicted of
             attempted second degree rape in Lenoir County, serves
             several years in prison, gets out (inaudible), he’s on what I
             presume is five years (inaudible). He’s being supervised.
             They know where he is . . . . [W]hen you look at Static 99
             he comes back as a (inaudible). This is not someone who
             comes in with Static 99 who is at high risk for re-offending.
             . . . Your Honor, . . . you can see in 1999 [sic] he was only
             19 years old at the time. Very, very young.

      The State argues Defendant’s counsel identified and discussed the prior

convictions at the SBM hearing in the course of his argument to the court. The State

asserts defense counsel’s argument was a stipulation and furnished the trial court

with sufficient “evidence” to conclude Defendant is a recidivist as defined by the

statute.

                                  A. Required Proof

      “An unilateral statement by the solicitor may not be considered as evidence.”

State v. Powell, 254 N.C. 231, 235, 118 S.E.2d 617, 620 (1961); see also State v. Wilson,

340 N.C. 720, 727, 459 S.E.2d 192, 196 (1995) (unsworn statement of the prosecutor

insufficient to support an award of restitution). Something more than unsworn

statements, which are unsupported by any documentation, is required as evidence

under the statute to allow the trial court to impose lifetime SBM on an individual.


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The State concedes no “evidence” was presented by the prosecutor to the trial court

of Defendant’s prior convictions.

      The Supreme Court of the United States has recently reviewed and discussed

the search and seizure implications of North Carolina’s SBM program on an

individual’s freedom under the Fourth Amendment. Grady v. North Carolina, __ U.S.

__, __ 191 L. Ed. 2d 459, 461-62 (2015) (“The State’s [SBM] program is plainly

designed to obtain information. And since it does so by physically intruding on a

subject’s body, it effects a Fourth Amendment search.”)

      This Court has previously explained: “A stipulation to prior convictions has

been held as sufficient for purposes of determining prior record level in felony

sentencing, which is a criminal proceeding; we believe that if this proof is sufficient

for sentencing purposes, it is also sufficient for purposes of SBM, which is a civil

regulatory proceeding.” State v. Arrington, 226 N.C. App. 311, 316, 741 S.E.2d 453,

457 (2013) (citing State v. Powell, 223 N.C. App. 77, 80, 732 S.E.2d 491, 494 (2012)).

The question before us is whether defense counsel’s statements to the court

constituted a stipulation to Defendant’s two prior convictions to allow the trial court

to impose lifetime SBM.

                             B. Defendant’s Stipulations

      Our Supreme Court has held that a mere prior record level worksheet

submitted to the trial court by the State, is insufficient, standing alone, to establish



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a defendant’s prior record level. State v. Alexander, 359 N.C. 824, 827, 616 S.E.2d

914, 917 (2005).     In numerous cases, this Court has addressed whether oral

statements of defense counsel constituted a stipulation to the defendant’s prior

convictions, which supports the defendant’s prior record level. An oral exchange

between defense counsel and the court following presentation of the prior record level

worksheet may constitute a stipulation the defendant obtained the prior convictions

as shown on the worksheet. Id. at 828-29, 616 S.E.2d at 917.

      “‘While a stipulation need not follow any particular form, its terms must be

definite and certain in order to afford a basis for judicial decision, and it is essential

that they be assented to by the parties or those representing them. Silence, under

some circumstances, may be deemed assent . . . .’” Id. (quoting Powell, 254 N.C. at

234, 118 S.E.2d at 619).

      In Alexander, the Court held that defense counsel’s statements to the court

demonstrated he “was cognizant of the contents of the worksheet, but also that he

had no objections to it.” Id. at 830, 616 S.E.2d at 918. See also State v. Eubanks, 151

N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002) (“[T]he statements made by the

attorney representing defendant in the present case may reasonably be construed as

a stipulation by defendant that he had been convicted of the charges listed on the

worksheet.”); State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000)

(defense counsel’s statement that there was no disagreement about the defendant’s



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prior convictions “might reasonably be construed as an admission by defendant that

he had been convicted of the other charges appearing on the prosecutor’s work sheet”).

      In all the aforementioned cases, the State had presented the court with a prior

record level worksheet, which contained the date and a description of the prior

convictions, the classes of offense, the file numbers, and the county where each

conviction was obtained. Here, the State produced and presented nothing but a bare

oral assertion of Defendant’s prior convictions.

      A statement by defense counsel may constitute a stipulation where it is

“definite and certain.” State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917

(2010). The State is statutorily required to “present to the court any evidence” that

the offender falls into one of the enumerated categories to impose SBM. N.C. Gen.

Stat. § 14-208.40A(a).   Here, the State failed to present “evidence” or sufficient

information to allow Defendant to enter a “definite and certain” stipulation.

Mumford, 364 N.C. at 403, 699 S.E.2d at 917.

      No evidence was presented to the trial court, upon which the court could have

determined Defendant had obtained the required prior sexual offense convictions to

be classified as a recidivist, and defense counsel’s statements and arguments did not

stipulate to the prior convictions. We vacate the trial court’s lifetime SBM order, and

remand for a proper evidentiary hearing, required by law. N.C. Gen. Stat. § 14-

208.40A(a)-(b).



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                                   V. Conclusion

      The State presented no evidence to support the trial court’s finding and

conclusion Defendant had two prior sexual offense convictions, which classifies him

as a recidivist, nor did Defendant enter a “definite and certain” stipulation on this

issue. Mumford, 364 N.C. at 403, 699 S.E.2d at 917. The trial court’s order is vacated

and this matter is remanded. In light of our holding, we do not address Defendant’s

remaining argument.

      VACATED AND REMANDED.

      Judges CALABRIA and DAVIS concur.




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