An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1217
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:    3 June 2014

STATE OF NORTH CAROLINA

      v.                                      Durham County
                                              No. 06 CRS 40556
TERRY WAYNE HARRIS


      Appeal by defendant from judgment entered 24 June 2013 by

Judge Orlando F. Hudson in Durham County Superior Court.                      Heard

in the Court of Appeals 19 February 2014.


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

      Wait Law,       P.L.L.C.,     by    John    L.   Wait,    for    defendant-
      appellant.


      McCULLOUGH, Judge.


      Defendant Terry Wayne Harris appeals from an order by the

trial court, requiring him to enroll in lifetime satellite-based

monitoring.       On appeal, defendant argues that the trial court

erred   by   finding     that   defendant     had   committed     an   aggravated

offense within the meaning of section 14-208.6(1a) of the North

Carolina General Statutes.           Based on the reasons stated herein,

we affirm the order of the trial court.
                                          -2-
                                 I.      Background

       On 3 July 2008, defendant was indicted for one count of

second-degree rape in violation of N.C. Gen. Stat. § 14-27.3(a).

The    indictment     alleged    that     on    30   December       2005,   defendant

“unlawfully, willfully, and feloniously did carnally know and

abuse [the victim], who was at the time mentally disabled and at

the time the defendant knew [the victim] was mentally disabled.”

       On 9 September 2008, defendant pled guilty to the second-

degree rape charge.          Based on the trial court’s determination

that    defendant     had   a    prior    record     level     of    IV,    defendant

received a minimum sentence of 80 months to a maximum sentence

of 105 months imprisonment.

       In a letter dated 9 March 2013, 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 15 April

2013 in Durham County Superior Court.                   DOC had made an initial

determination that defendant had been convicted of an aggravated

offense pursuant to N.C. Gen. Stat. § 14-208.6(1a) and thus, had

met the criteria set out in N.C. Gen. Stat. § 14-208.40(a)(1),

requiring lifetime SBM.
                              -3-
    Following a hearing, the trial court entered an order on 24

June 2013 requiring defendant to enroll in lifetime SBM.                The

trial court found the following:

            1.   The   defendant   was  convicted   of   a
                 reportable conviction as defined by G.S.
                 14-208.6(4), but the sentencing court
                 made no determination on whether the
                 defendant should be required to enroll in
                 [SBM] under Article 27A of Chapter 14 of
                 the General Statutes.

            2.   The Division of Adult Correction has made
                 an   initial   determination   that   the
                 offender falls into at least one of the
                 categories requiring [SBM] under G.S. 14-
                 208.40[.]

            . . . .

            4.   The defendant (a) falls into at least one
                 of the categories requiring [SBM] under
                 G.S. 14-208.40 in that (iii) the offense
                 of which the defendant was convicted was
                 an aggravated offense.

    Defendant timely appeals the 24 June 2013 order.

                        II.   Standard of Review

    In reviewing 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
                                            -4-
of   fact    are   conclusive        on    appeal     if    supported       by   competent

evidence,     even   if   the        evidence    is    conflicting.”             State   v.

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 his prior conviction of

second-degree rape under N.C. Gen. Stat. § 14-27.3(a)(2) does

not constitute an aggravated offense as defined in N.C. Gen.

Stat. § 14-208.6(1a).            Thus, defendant contends that the trial

court erred by ordering him to enroll in lifetime SBM.

      N.C.    Gen.    Stat.      §    14-208.6(1a)         defines    an     “aggravated

offense” 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).

             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 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.
                               -5-
State v. Green, __ N.C. App. __, __, 746 S.E.2d 457, 464 (2013)

(citation and quotation marks omitted).

       In the present case, defendant was convicted of one count

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 is mentally disabled and where

the   person    engaging   in     vaginal   intercourse   “knows    or    should

reasonably know” that the victim is mentally disabled.                      N.C.

Gen. Stat. § 14-27.3(a) provides as follows:

            (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. Gen. Stat. § 14-27.3(a) (2013) (emphasis added).

       In State v. Talbert, 2014 N.C. App. LEXIS 316 (2014), our

Court addressed this identical issue.            In Talbert, the defendant

was convicted of second-degree rape based upon an indictment

alleging that the victim was physically helpless at the time of

the incident in violation of N.C. Gen. Stat. § 14-27.3(a)(2).
                                                -6-
Id. at __, __ S.E.2d at __.                           Following a SBM determination

hearing,    the      trial       court    entered       an    order   finding     that    the

Talbert defendant had committed an aggravated offense within the

meaning of N.C. Gen. Stat. § 14-208.6 and ordered the defendant

to enroll in lifetime SBM.                  Id. at __, __ S.E.2d at __.                  The

Talbert defendant appealed the SBM determination.                                Our Court

held that because the elements of second-degree rape under N.C.

Gen.    Stat.    §    14-27.3(a)(2)         were       sufficient     to   constitute      an

“aggravated offense” for SBM purposes, the trial court’s order

subjecting defendant to lifetime SBM should be affirmed.                              Id. at

__, __ S.E.2d at __.

       Because       the   case     sub     judice       is    indistinguishable         from

Talbert, we are bound by the decision of our Court.                              See In re

Civil   Penalty,       324       N.C.    373,    384,    379    S.E.2d     30,   37   (1989)

("Where a panel of 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.").

       Accordingly, we hold that the trial court did not err by

finding    that       defendant’s        second-degree         rape   conviction        under

N.C.    Gen.     Stat.       §    14-27.3(a)(2)          constituted       an    aggravated

offense as defined in N.C. Gen. Stat. § 14-208.6(1a) and by
                               -7-
requiring defendant to enroll in lifetime SBM.   The 24 June 2013

order of the trial court is affirmed.

    Affirmed.

    Judges HUNTER, Robert C., and GEER concur.

    Report per Rule 30(e).
