An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1436
                         NORTH CAROLINA COURT OF APPEALS

                                  Filed: 15 July 2014



STATE OF NORTH CAROLINA

      v.                                      Forsyth County
                                              No. 12 CRS 050342
CHRISTOPHER LEEVETT ROBINSON



      Appeal by defendant from judgment entered 11 March 2013 by

Judge V. Brad Long in Forsyth County Superior Court.                      Heard in

the Court of Appeals 3 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Sherri Horner Lawrence, for the State.

      M. Gordon Widenhouse, Jr., for defendant-appellant.


      HUNTER, Robert C., Judge.


      Christopher Leevett Robinson (“defendant”) was sentenced to

200 to 249 months imprisonment after pleading guilty to three

counts     of   first    degree    sexual   offense   with    a   child   and   two

counts of indecent liberties with a child.                   Defendant appeals

from the trial court’s civil judgment imposing the highest level

of   supervision        and   satellite-based     monitoring      (“SBM”)    for   a
                                                -2-
period of thirty years following his release from prison.                                    On

appeal, defendant argues that                    the trial court erred by: (1)

basing    some    of    its       factual       findings       in     the   SBM   hearing    on

inadmissible         evidence       and    (2)        impermissibly         considering     the

facts underlying his conviction in its SBM determination.

       After careful review, we affirm the trial court’s judgment.

                                          Background

       The    prosecution         provided       the    following        factual    basis    to

support the guilty plea: Defendant is the biological uncle of

the alleged child victim (“the child”), who was nine years old

when     allegations      against          defendant           were    submitted     to     the

Winston-Salem        Police       Department.            On    26     September    2011,    the

child    was   playing        a    game    called       “telling       secrets”     with    her

friends.       Accompanying the child was her maternal grandmother

and    adoptive      mother,        who    is     also        defendant’s     mother      (“the

grandmother”).            The        child’s          biological         mother,     who     is

defendant’s sister, was not present.                           At one point the child

became upset during the game, and when the grandmother asked

why, the child revealed that defendant had been molesting her.

When    she    was     told       what    the    child        said,    defendant’s     sister

confronted him about the allegations.                         Defendant admitted to his

sister that he had been molesting the child for “quite some
                                          -3-
time.”       Defendant   denied      penetrating       the    child’s    vagina    but

admitted to his sister that he had put his penis in the child’s

rectum.

      Soon    thereafter,      the   child      was   examined      by   a    forensic

interviewer.       She revealed during this interview that defendant

had molested her multiple times by putting his penis in her

rectum, specifically when she was seven and eight years old, and

that the last incident occurred when she was nine years old.

The child said that defendant would take her out of her bed and

put her on the floor, take off her clothes, and penetrate her

rectum until he ejaculated.               Defendant later admitted to police

investigators that he started abusing the child when she was a

few months old by rubbing his hand on her vagina.                            Defendant

denied ever “penetrating” the child, but admitted to rubbing his

penis    around    her   vagina      on    at   least    thirty     occasions     and

ejaculating in front of her.

      In April 2012, defendant was indicted on three counts of

sexual offense with a child by an adult and two counts of taking

indecent liberties with a minor.                On 11 March 2013, defendant

pled guilty pursuant to an agreement that the charges would be

consolidated for sentencing as one count of sexual offense with

a   child    by   an   adult   and   defendant        would    be   entitled     to   a
                                          -4-
mitigating factor that he accepted responsibility at an early

stage of the proceedings.

        After sentencing, the trial court conducted a hearing to

determine whether defendant required SBM.                   The Department of

Corrections performed a STATIC-99 risk assessment, which is the

tool    used    for    assessing   a   sexual       offender’s   likelihood   for

reoffending, on defendant.             Defendant obtained a score of one

point, indicating a low risk of recidivism.

       During    the    SBM    hearing,    the   grandmother     testified    that

defendant had a long history of prior sexual misconduct.                   First,

she testified that defendant sexually assaulted his classmates

while    at    school    but    admitted     that    she   had   not   personally

witnessed any such conduct and did not identify any victims;

rather, she became aware of these incidents because she had to

“go through other changes when he was in school” to prevent

similar future occurrences.               Second, the grandmother testified

that defendant molested a mentally handicapped young girl.                     She

again did not provide any specific information to corroborate

this claim, and although she claimed that there may be police

records of the incident, none were produced at the hearing.

Finally, the grandmother testified that she personally witnessed

defendant inappropriately grabbing both herself and defendant’s
                                             -5-
sister.     She testified that defendant grabbed her “in places he

shouldn’t be” and that he grabbed his sister on “their [sic.]

breasts, their [sic.] behind.”

       Based only on this testimony, the trial court found as fact

that     defendant         sexually       molested      numerous       females    in     his

environment,       including        his    mother,      sister,      and    classmates    at

school, and that defendant had been investigated on at least one

prior    occasion     for     sexually       molesting        a    mentally   handicapped

female.     Based on the factual basis of defendant’s guilty plea,

the trial court also found that defendant began molesting the

child when she was an infant and that this conduct continued

until    she    was   nine        years   old.       The   trial      court   used     these

findings of fact to conclude that defendant posed a sufficient

risk of reoffending to warrant the imposition of the highest

level of supervision and ordered SBM for 30 years after his

release from prison.              Defendant filed timely notice of appeal.

                                   Standard of Review

       In SBM proceedings, the factual findings of the trial court

are     reviewed      to     determine       whether       they      are    supported    by

competent evidence.           State v. Kilby, 198 N.C. App. 363, 366-367,

679    S.E.2d    430,       432    (2009).         If   the       factual   findings     are

supported by competent evidence, they are binding on appeal.
                                          -6-
State v. Thomas, __N.C. App. __, __, 741 S.E.2d 384, 386 (2013).

The trial court’s conclusions of law are reviewed for “legal

accuracy and to ensure that those conclusions reflect a correct

application of law to the facts found.”                     State v. Green, 211

N.C. App. 599, 601, 710 S.E.2d 292, 294 (2011).

                                   Discussion

       N.C. Gen. Stat. § 14-208.40 (2013) sets out the guidelines

for imposing SBM.          “Active”       SBM, which refers to continuous

satellite-based      monitoring,     is     the   highest     possible    level    of

supervision and monitoring.               N.C. Gen. Stat. § 14-208.40(b).

N.C.    Gen.   Stat    §    14-208.40A          outlines     the     procedure    for

determining whether an offender requires SBM enrollment.                     In the

qualification phase, N.C. Gen. Stat § 14-208.40A lists several

offense   categories       that    make    an     offender    eligible     for    SBM

enrollment,    one    of   which    provides      “the     offense    involved    the

physical, mental, or sexual abuse of a minor.”                     N.C. Gen. Stat.

§14-208.40A(a).        If the court finds during the qualification

phase that the        offender falls into           this category,       the trial

court must perform a risk assessment to determine whether SBM is

warranted.     After the risk assessment is completed, the trial

court has discretion to determine whether the offender requires

supervision and monitoring.          N.C. Gen. Stat. § 14-208.40A(e).
                                                       -7-
       A    low or moderate risk assessment in a STATIC-99 score

alone      is     insufficient             to     support     a   determination          that    the

offender          requires          the      highest         level     of     supervision        and

monitoring.           Kilby, 198 N.C. App. at 369-370, 679 S.E.2d at 434.

The trial court is permitted to consider any proffered evidence

relevant to the risk of recidivism posed by a defendant.                                      Green,

211 N.C. App. at 602-603, 710 S.E.2d at 295.                                        The proffered

evidence must be competent and admissible to support a trial

court’s finding of fact.                          Kilby, 198 N.C. App. at 367, 679

S.E.2d 432.

                              I. The Grandmother’s Testimony

       Defendant first contends that the trial court’s findings of

fact       that       defendant       sexually           molested      his     mother,     sister,

classmates,           and      a     mentally           handicapped        young     female     were

unsupported by competent and admissible evidence, and therefore

the     trial         court        erred     in        imposing      the    highest     level     of

supervision and monitoring based on those findings.                                      We agree

that some of the factual findings entered by the trial court

were unsupported by competent and admissible evidence, but we

affirm the imposition of the highest level of SBM.

       The      North       Carolina        Rules       of   Evidence       provide    that     “[a]

witness         may     not        testify        to     a   matter        unless    evidence     is
                                   -8-
introduced sufficient to support a finding that he has personal

knowledge of the matter.”         N.C. Gen. Stat. § 8C-1, Rule 602

(2013).     Personal knowledge of a matter primarily refers to

personal perception of an occurrence.        State v. Cox, 296 N.C.

388, 391, 250 S.E.2d 259, 261 (1979).         Generally speaking, as

long as a lay witness has a basis of personal knowledge for his

or her testimony, the evidence is admissible so long as it is

relevant.     State v. Anthony, 354 N.C. 372, 411, 555 S.E.2d 557,

583 (2001).       Testimony that amounts to mere speculation rather

than personal knowledge is inadmissible.          State v. Garcell, 363

N.C. 10, 36, 678 S.E.2d 618, 635, cert. denied, 558 U.S. 999,

175 L. Ed. 2d 362 (2009).

       First, we hold that the trial court’s finding of fact that

defendant molested his mother and his sister was supported by

competent   and    admissible   evidence.   The   testimony   supporting

these findings was based on the personal observations of the

grandmother of the sexual assaults on herself and defendant’s

sister; therefore, based on the plain application of Rule 602,

the grandmother’s testimony was admissible.         See N.C. Gen. Stat.

§ 8C-1, Rule 602 (2013); Anthony, 354 N.C. at 411, 555 S.E.2d at

583.    However, defendant contends that even if he touched his

mother and his sister in the manner alleged, “[the grandmother]
                                             -9-
did not provide any sufficient details or describe how any of

this touching was sexual misconduct.”                     Defendant claims that

since the grandmother did not describe the conduct as sexual in

nature, this testimony did not support the trial court’s factual

finding that defendant “molested” her or his sister.                                 It is

clear,    however,      that    the       grandmother    categorized        the    act    of

defendant    grabbing       her      as    inappropriate        by   saying       that    he

touched     her   “in    places       he     shouldn’t    be.”          Regarding        the

inappropriate touching of defendant’s sister, the fact that the

grandmother testified that defendant specifically grabbed “their

[sic.] breasts, their [sic.] behind” indicates the sexual nature

of the touching.         Therefore, we conclude that the trial court’s

finding of fact that defendant molested his mother and sister

was supported by competent and admissible evidence.

    Second, the trial court’s finding that defendant molested

his classmates at school was not supported by competent and

admissible    evidence.           During      her   testimony,       the    grandmother

admitted that she did not observe any of the incidents of sexual

misconduct that she alleged to have occurred at school.                                   The

State    contends    that      the    grandmother       would    have      had    personal

knowledge of incidents that defendant was involved in at school

simply    because    she    was      his    parent.      We     disagree      with       this
                                           -10-
contention.         Personal knowledge for the purposes of Rule 602

requires personal perception of an act or occurrence, not mere

speculation.        See State v. Elkins, 210 N.C. App. 110, 117, 707

S.E.2d 744, 751 (2011).                The grandmother testified that she knew

of defendant molesting children at his school merely because she

“had to go through other changes when he was in school . . . to

keep   his    hands       to    himself    and    things     of    that    nature,”   not

because      she    had    any    personal       knowledge    of     these    incidents.

Because      this     testimony          amounts     to      speculation,       it    was

inadmissible for lack of personal knowledge.                             See Elkins, 210

N.C. App. at 117, 707 S.E.2d at 751.                          Therefore, the trial

court’s finding of fact that defendant molested his classmates

is not supported by competent evidence and cannot support the

SBM determination.             See Kilby, 198 N.C. App. at 367, 679 S.E.2d

432.

       Finally,      the       trial    court’s    finding        that    defendant   was

investigated for sexually molesting a mentally handicapped girl

was similarly unsupported by competent and admissible evidence.

Again, the grandmother admitted that she did not observe this

alleged incident, and it is unclear from her testimony how she

became aware of it.                While she mentioned that there may be

police reports of the incident, she did not claim to be familiar
                                        -11-
with or possess these reports.              Because there was no evidence

indicating that the grandmother had personal knowledge of any

such investigation, her testimony was inadmissible.                           See N.C.

Gen. Stat. § 8C-1, Rule 602 (2013).                     Accordingly, the trial

court’s    finding   of    fact   that    defendant       was    investigated       for

molesting     a   mentally    handicapped        girl    was    not    supported    by

competent evidence and may not support the SBM determination.

See Kilby, 198 N.C. App. at 367, 679 S.E.2d 432.

       In sum, we conclude that the trial court properly found as

fact   that   defendant      molested     the    grandmother      and    defendant’s

sister as an adult, but because the grandmother did not have

personal      knowledge      regarding      any     of     the        other    alleged

misconduct, the trial court’s findings of fact that he molested

his classmates and was investigated for molesting a mentally

handicapped girl were not supported by competent and admissible

evidence.

                       II. Findings Supporting SBM

       Defendant next contends that the trial court erred by using

the    factual    circumstances      of    the    underlying      convictions        as

support for the imposition of SBM.                Defendant also argues that

since his sexual misconduct was directed toward a family member,

he    is   less   likely     to   reoffend.        We    disagree       as    to   both
                                           -12-
arguments.

       First,    defendant         asserts     that     since     “some    of    these

additional findings related to the facts of the offenses for

which [defendant] was subject to SBM, they could not support a

conclusion      that    he    required       the    highest     possible   level    of

supervision and monitoring.”               However, this Court has recently

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 . . . .”            Green, 211 N.C. App. at 603, 710 S.E.2d at

295.

       In Green, the defendant pled guilty to two counts of taking

indecent liberties with a minor.                  Id. at 599, 710 S.E.2d at 293.

The trial court imposed the highest level of supervision and

monitoring for five years based on the defendant’s moderate-low

risk assessment score in addition to other factual findings, one

of   which    was     that    “(1)   the     victims    were     especially     young,

neither victim was able to advocate for herself, one victim was

too young to possibly even speak . . . .”                         Id. at 601, 710

S.E.2d at 294.         The defendant appealed his SBM order, arguing

that   since    the    trial    court’s      finding     that    his   victims     were

especially young “[was] based on the underlying factual scenario
                                        -13-
of his conviction,” this finding should not have been used to

supplement the DOC’s risk-assessment score to impose the highest

level   of   SBM.         Id.   (quotation     marks   omitted).       This    Court

disagreed, holding that the underlying facts of the conviction

were properly considered by the trial court.                  Id. at 603, 710

S.E.2d at 295.        The Court made a distinction between using the

underlying facts of the conviction in the qualification and risk

assessment phases of the SBM hearing.                   See id. at 602, 710

S.E.2d at 295.        It held that the “factual context of the crime

may   not    be    considered     in   determining     whether     a   defendant’s

offense of conviction was an ‘aggravated offense’ or an offense

involving the physical, mental, or sexual abuse of a minor,” but

the trial court “should consider any proffered and otherwise

admissible evidence relevant to the risk posed by a defendant”

during the risk assessment phase.               Green, 211 N.C. App. at 603,

710 S.E.2d at 295 (citing State v. Morrow, 200 N.C. App. 123,

131, 683 S.E.2d 754, 760-761 (2009)).                  Since the trial court

used the underlying factual basis of the plea only in the risk

assessment        phase    of    the   SBM     hearing,    and     not    in    the

qualification phase, the Green Court found no error.                   See id. at

603, 710 S.E.2d at 295.

      Here, the trial court did not use the underlying facts of
                                      -14-
defendant’s conviction in the qualification phase of the SBM

hearing.      Based only on the elements of defendant’s convicted

crimes   of   indecent    liberties    with    a     minor    and    first   degree

sexual offense with a child, the trial court determined that

defendant fit into the category of offenders that involved the

sexual abuse of a minor.       The trial court did, however, consider

the facts underlying the conviction in the risk assessment phase

of the SBM hearing.        Thus, pursuant to Green, we conclude the

trial court did not err.       Defendant never contested the child’s

age and conceded that there was a factual basis to support his

guilty plea.     Furthermore, defendant had previously admitted his

sexual     misconduct    towards    the      child    to     investigators      and

described these incidents in detail.                 Thus, the continuity of

defendant’s    improper    sexual     behavior       around    the    child    over

several years and the factual circumstances of her age were

relevant to the trial court’s inquiry into whether defendant may

pose a high risk of recidivism after his release from prison.

N.C. Gen. Stat. §14-208.40A; Green, 211 N.C. App. at 603, 710

S.E.2d at 295.

    Defendant’s argument that he is less likely to reoffend due

to the fact that his sexual misconduct was directed towards a

family member and not a stranger is also without merit.                          As
                                         -15-
discussed above, competent evidence supports the trial court’s

factual finding that in addition to sexually abusing the child

for   years,    defendant       had    sexually     molested    his     mother    and

sister.        Contrary     to    defendant’s          argument,    this    finding

indicates that there is perhaps an unusually high risk that

defendant will reoffend when around family members.                     Defendant’s

argument is overruled.

                          III. Conclusions of Law

      Defendant’s final argument is that the trial court erred by

concluding that he requires the highest level of supervision and

monitoring     because     its        findings    of     fact   supporting       that

conclusion are not supported by competent evidence.                        Although

some of the trial court’s findings of fact were not supported by

competent evidence, we conclude that there were still sufficient

findings to support the trial court’s conclusions of law.

      The holding in Green, discussed above, is also helpful to

this analysis.      In Green, after the defendant scored moderate-

low on his STATIC-99 risk assessment test, the trial court made

the additional findings that (1) the victims were especially

young, (2) the defendant had a history of domestic violence, and

(3)   the   defendant     had    not     obtained      sex   offender   treatment.

Green, 211 N.C. App. at 601, 710 S.E.2d at 294.                    On appeal, this
                                                 -16-
Court     ruled        that     the       factual       finding       that        defendant      had

“committed multiple acts of domestic violence” was unsupported

by competent evidence and therefore should not have been used to

support        the    determination           that      the     defendant          required       the

highest level of SBM.               Id. at 604, 710 S.E.2d 296.                     Nonetheless,

the Court held that the remaining factual findings, as well as

defendant’s moderate-low risk-assessment score, were sufficient

grounds to support the trial court’s imposition of the highest

level of supervision and monitoring.                          Id. at 604-605, 710 S.E.2d

at      296.              The      Court      noted       that        “[a]s section             15A–

1340.16(d) provides that the very young age of the victim is an

appropriate aggravating factor for sentencing purposes, we see

no    reason         why    that      fact     would     not      also       be     a    similarly

‘aggravating’ finding in the SBM context.”                            Id.

      Here,      the       trial      court       properly       entered          the    following

findings of fact: (1) defendant sexually molested his mother and

sister    as     an       adult;    (2)      defendant        began    touching          the    child

inappropriately            when     she    was    an    infant;       and    (3)        the    sexual

contact between defendant and the child continued until she was

nine years old.             Given the “aggravating” nature of the child’s

young age at the time of the abuse, Green, 211 N.C. App. at 605,

710     S.E.2d       at     296,     defendant’s         admittedly          repeated          sexual
                                      -17-
assault of the child throughout her young life, and defendant’s

molestation of his mother and sister as an adult, we hold that

the trial court’s imposition of the highest level of supervision

and monitoring “reflect[s] a correct application of law to the

facts found.”       Kilby, 198 N.C. App. at 367, 679 S.E.2d at 432.

Accordingly, we affirm the trial court’s judgment.

                                  Conclusion

    We conclude that the trial court’s factual findings that

defendant had molested his classmates and was investigated for

molesting    a     mentally    handicapped     girl   are    unsupported    by

competent    evidence.        However,   the   remaining    factual   findings

were supported by competent and admissible evidence and were

sufficient    to    support     the   legal    conclusion    that     defendant

requires the highest level of supervision and monitoring for 30

years after his release from prison.



    AFFIRMED.

    Judges McGEE and ELMORE concur.

    Report per Rule 30(e).
