              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-778

                                Filed: 20 June 2017

Mitchell County, No. 14 CRS 50381

STATE OF NORTH CAROLINA

             v.

JEFFERY L. DYE, JR.


      Appeal by Defendant from judgment entered 25 February 2016 by Judge

William H. Coward in Superior Court, Mitchell County. Heard in the Court of

Appeals 20 February 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Margaret A.
      Force, for the State.

      Anne Bleyman for Defendant.


      McGEE, Chief Judge.


      Jeffery L. Dye, Jr. (“Defendant”) appeals from judgment entered after a jury

found him guilty of statutory rape. We find no error in Defendant’s trial, but vacate

the order imposing satellite-based monitoring for a period of thirty years due to a

violation of N.C. Gen. Stat. § 14-208.40A.

                                   I. Background

      The State’s evidence at trial tended to show the following: Defendant lived with

his fiancée, Heather Townsend (“Townsend”), in a mobile home park in Mitchell

County, North Carolina, in June 2013. Around that time, Defendant’s cousin, B.G.,
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                                   Opinion of the Court



began living with Misty Briggs (“Briggs”), B.G.’s aunt and Defendant’s mother. At

the times relevant to the present case, Defendant was twenty-three years old and

B.G. was fourteen years old.

      Shortly after B.G. began living with Briggs, Defendant called to ask if B.G.

would come to his mobile home to wash the dishes and babysit two of his children.

When B.G. arrived, she assisted Defendant in washing the dishes and putting the

children to bed. After the children were asleep, Defendant began telling B.G. about

an argument he had with Townsend earlier in the day, and B.G. listened “because no

one else was there for [Defendant].”          While telling B.G. about the argument,

Defendant asked B.G. “if [she] wanted to have sex with him, and [B.G.] told him no

at first.” As B.G. explained at trial:

             You know, [I told Defendant]. . . I don’t want to have sex
             with you, this is wrong, and I was like if your girlfriend
             finds out this is not going to look good at all, you know. And
             so [Defendant] was undressing me, you know, like, he told
             -- well, he told me to go put a bathing suit on and I was like
             sure, you know, okay. I put a bathing suit on and we were
             standing in the room, in his back bedroom, and yeah that’s
             pretty much it. . . . [Defendant] undressed me from there,
             and then that’s when [Defendant] raped me.

Upon further questioning, B.G. stated Defendant had engaged in vaginal intercourse

with her. The encounter continued for approximately an hour and a half, until

Townsend returned to the mobile home. At that point, Defendant stopped having sex

with B.G., gave her clothing to wear, and told her to not tell anyone because

“[Defendant] didn’t want to go into jail or . . . get in any trouble with the law[.]”

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Despite Defendant’s warning, B.G. testified she told Briggs that Defendant had raped

her, but Briggs did not believe the accusation.          B.G. eventually repeated the

allegation to her school counselor in August 2013, when school was back in session.

      B.G. was examined by Dr. Kelly Rothe (“Dr. Rothe”) on 27 March 2014. At

trial, Dr. Rothe was accepted, without objection, as an expert in child sexual assault

and in child medical examinations. Dr. Rothe began B.G.’s medical examination by

asking B.G. a series of questions, and then performed a “head to toe” physical

examination, including an internal vaginal examination. Dr. Rothe testified, without

objection, that the examination revealed that the “posterior rim” of B.G.’s hymen was

“thinned, which would have been consistent with a vaginal penetration.” Elaborating

on the examination, again without objection, Dr. Rothe testified that when she

examined the posterior rim of B.G.’s hymen, it was “thinned,” and “was, in fact,

absent in what we call that 5 to 7 o’clock area, and that is the area that is most

suspicious for vaginal penetration in child abuse.” After discussing her findings, the

following colloquy between Dr. Rothe and the prosecutor occurred:

             [Prosecutor:] . . . [A]fter conducting the investigation, Dr.
             Roth[e], did you form any opinion regarding the possibility
             of sexual abuse?

             [Dr. Rothe:] Right, so, like I said that having an absent
             hymen in that section of posterior rim is very suspicious for
             sexual abuse. Just for your background, the only time that
             as a clinical provider we can say sexual abuse happened is
             if we see that hymen within three days of the sexual abuse,
             and then we also track it [sic] healing. That’s why the


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             nomenclature becomes difficult because the hymen, like
             the inside of the mouth, heals very quickly. But [B.G.’s]
             exam with an absent posterior rim was very suspicious for
             sexual abuse and with the disclosure of sexual abuse --

Defendant’s counsel then objected and argued that Dr. Rothe was able to “say . . . that

[her] findings support or are suspicious of, I think is what [Dr. Rothe] said, sexual

abuse” but was not able to “give an opinion about what [B.G.] said to [Dr. Rothe].”

After a protracted discussion with the prosecutor and Defendant’s counsel, the trial

court stated that Dr. Rothe “should not vouch for [B.G.’s] credibility.”

      Upon further questioning, Dr. Rothe twice reiterated that the results of the

examination were “suspicious for vaginal penetration” due to the absence of the

posterior rim of B.G.’s hymen. On cross-examination, Dr. Rothe admitted the results

of her examination of B.G. were “suspicious but not conclusive” for vaginal

penetration and that, without a “baseline” examination of B.G. conducted before the

alleged abuse, it was “hard to tell” whether the trauma observed in the examination

was “normal to [B.G.] or not.”

      Defendant was convicted of statutory rape and sentenced to a term of 254 to

365 months in prison. After sentencing Defendant, the trial court considered whether

satellite-based monitoring (“SBM”) was appropriate in an SBM hearing.              The

prosecutor presented the results of Defendant’s Static-99 examination that indicated

a risk assessment of four points, placing Defendant in a “Moderate-High” risk

category. The trial court found that: (1) the offense was a sexually violent offense


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pursuant to N.C. Gen. Stat. § 14-208.6(5); (2) Defendant “has not been classified as a

sexually violent predator;” (3) Defendant is not a recidivist; (4) the offense is not an

aggravated offense; and (5) the offense did involve the physical, mental, or sexual

abuse of a minor.

       Based upon these findings, the trial court ordered Defendant to register as a

sex offender for a period of thirty years. The trial court then asked the prosecutor if

the decision to order Defendant to enroll in satellite-based monitoring was “in [the

trial court’s] discretion . . . [b]ecause of the score on the Static-99,” and the prosecutor

indicated that it was. After brief arguments from both the State and Defendant, the

trial court ordered Defendant to enroll in satellite-based monitoring for the duration

of the thirty year period that Defendant was to be registered as a sex offender. The

trial court memorialized these findings as a written order (“the SBM order”).

Defendant appeals.

                                       II. Analysis

       Defendant argues the trial court erred by: (1) allowing Dr. Rothe to improperly

bolster B.G.’s credibility; (2) failing to make adequate findings of fact in the SBM

order to support a determination that the highest possible level of supervision was

required; and (3) failing to determine whether enrollment in satellite-based

monitoring would violate Defendant’s Fourth Amendment right to be free from

unreasonable searches and seizures. Defendant also contends he received ineffective



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assistance of counsel because his trial counsel failed to object to, and enter written

notice of appeal from, the SBM order.

                                  A. Dr. Rothe’s Testimony

       Defendant argues the trial court allowed Dr. Rothe to improperly bolster B.G.’s

credibility. Specifically, Defendant argues Dr. Rothe’s testimony that B.G.’s hymen

was “thin[ning] [or] absent in . . . that 5 to 7 o’clock area,” and that such a result was

consistent with penetration and was “most suspicious for vaginal penetration in child

abuse” improperly bolstered B.G.’s credibility. We disagree.1

       Pursuant to N.C. Gen. Stat. § 8C-702(a), a qualified expert may testify as to

her opinion in her field of expertise if the testimony will assist the jury in

understanding the evidence. A trial court’s decision on the admissibility of an expert

opinion “will not be reversed on appeal absent a showing of abuse of discretion.” State

v. McGrady, 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (citations omitted). Generally,

an expert may not testify about the credibility of a witness or state that it is the

expert’s belief the defendant is innocent or guilty. State v. Heath, 316 N.C. 337, 341-

42, 341 S.E.2d 565, 568 (1986) (holding that “an expert’s expression of an opinion as

to the defendant’s guilt or innocence” is impermissible). Our Supreme Court has held

that “[t]he question of whether a witness is telling the truth is a question of credibility


       1 Defendant and the State disagree about whether this argument has been properly preserved
for our full review, or whether plain error review is appropriate. Because we determine that Dr.
Rothe’s testimony did not improperly bolster B.G.’s credibility, we need not determine whether any
error amounted to plain error.

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and is a matter for the jury alone.” State v. Solomon, 340 N.C. 212, 221, 456 S.E.2d

778, 784, cert. denied, 516 U.S. 996, 133 L. Ed. 2d 438, 116 S. Ct. 533 (1995).

      In State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002), our Supreme Court

held, consistent with Solomon, that a “trial court should not admit expert opinion

that sexual abuse has in fact occurred because, absent physical evidence supporting

a diagnosis of sexual abuse, such testimony is an impermissible opinion regarding

the victim’s credibility.” 355 N.C. at 266-67, 559 S.E.2d at 789 (emphasis in original)

(citations omitted).   However, “an expert witness may testify, upon a proper

foundation, as to the profiles of sexually abused children and whether a particular

complainant has symptoms or characteristics consistent therewith.” Id. (citations

omitted).

      In the present case, and after being accepted without objection as an expert in

child sexual assault and in child medical examinations, (T p 183-184) Dr. Rothe

explained the interview and physical examination she performed on B.G. Dr. Rothe

then testified that the results of her examination – which revealed that B.G.’s hymen

was “absent in . . . that 5 to 7 o’clock area” – was “most suspicious for vaginal

penetration in child abuse” and “very suspicious for sexual abuse.” Dr. Rothe also

testified about why the absence of the hymen in the posterior region is suspicious for

vaginal penetration, explaining that “the posterior rim [of a hymen] [is] less elastic”




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                                   Opinion of the Court



than the anterior rim, such that “if there is vaginal penetration, it is the most likely

affected” area of the hymen.

      Defendant directs this Court’s attention to State v. Trent, 320 N.C. 610, 359

S.E.2d 463 (1987) and State v. Parker, 111 N.C. App. 359, 432 S.E.2d 705 (1993) in

support of his position that Dr. Rothe’s testimony was improper. The testimony of

the experts in those cases, however, are materially different from Dr. Rothe’s

testimony in the present case. In Trent, the examining physician testified the victim’s

hymen was not intact, but otherwise the victim had no “lesions, tears, abrasions,

bleeding or otherwise abnormal conditions.” Id. at 613, 359 S.E.2d at 465. Based on

this evidence, and over the objection of the defendant, the physician testified it was

his belief that the victim had in fact been sexually abused. Id.

      Similarly, in Parker, the examining physician testified “[i]t was [his] opinion

that [the victim] had been sexually abused over a long period of time[.]” Parker, 111

N.C. App. at 366, 432 S.E.2d 359, 709-10 (1993). This Court found that the testimony

was based only on an interview the physician completed with the victim, and the fact

that her hymenal ring was not intact. Id.       In both cases, the reviewing court held

that the expert was in no better position than the jury to determine whether the

victim “was sexually abused,” and therefore held it was erroneous for the trial court

to admit the expert’s diagnosis of sexual abuse. Trent, 320 N.C. at 614-15, 359 S.E.2d

at 465-66; Parker, 111 N.C. App. at 366, 432 S.E.2d at 709-10.



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                                    Opinion of the Court



       In the present case, and unlike the experts in Trent and Parker, Dr. Rothe

made no definitive diagnosis that B.G. was a victim of sexual abuse. Instead, Dr.

Rothe detailed the examination she performed on B.G., and testified that the absence

of B.G.’s hymen in the 5-7 o’clock area was “suspicious” for vaginal penetration and

that “having an absent hymen in that section of posterior rim is very suspicious for

sexual abuse.”    Dr. Rothe also appropriately cautioned that her findings, while

suspicious for vaginal penetration and sexual abuse, were not conclusive; Dr. Rothe

explained that “the only time . . . a clinical provider . . . can say sexual abuse happened

is if we see that hymen within three days of the sexual abuse[.]” Since Dr. Rothe had

not examined B.G. within three days of the alleged sexual abuse in this case, she

explained that the “nomenclature becomes difficult.” Dr. Rothe also readily conceded

on cross-examination that the gap of eight months between the alleged abuse and the

examination would “affect [Dr. Rothe’s] ability to determine some results” of her

examination; that there is “a lot of variation in what one would consider normal in

what a hymen of a prepubescent or pubescent girl looks like” and the appearance of

B.G.’s hymen could fall within that normal variation; and that conclusive results were

not possible without a “baseline” examination conducted before the alleged abuse.

Dr. Rothe further testified on cross-examination that the results of B.G.’s

examination were “suspicious but not conclusive” for vaginal penetration.




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                                   Opinion of the Court



      Given this testimony, it is clear that Dr. Rothe did not opine sexual abuse had

in fact occurred, but rather explained that the results of her examination merely

suggested that it had. Dr. Rothe’s testimony that the results of B.G.’s examination

were “suspicious” of vaginal penetration and sexual abuse is consistent with

testimony this Court has found to be permissible, including an expert’s opinion that

the results of an examination are “consistent with” sexual abuse. See, e.g., State v.

Goforth, 170 N.C. App. 584, 589-90, 614 S.E.2d 313, 316-17 (2005); see also State v.

Dick, 126 N.C. App. 312, 314-16, 485 S.E.2d 88, 90 (1997) (finding no error in expert

testimony that sexual abuse was “very likely” where there was physical evidence of

the abuse, and distinguishing Trent and Parker, where there was no physical

evidence of sexual abuse). Accordingly, we hold the trial court did not abuse its

discretion in admitting the challenged testimony, as that testimony did not

improperly bolster the credibility of B.G.

       B. SBM Hearing Procedure; Violation of N.C. Gen. Stat. § 14-208.40A

      Defendant contends the trial court erred by ordering him to enroll in the SBM

program for a period of thirty years without sufficient findings of fact that Defendant

required the highest possible level of supervision and monitoring, and that such a

failure violated the statutory mandate of N.C. Gen. Stat. § 14-208.40B. Def. Br p

16-17. As Defendant concedes, he only gave oral notice of appeal at the conclusion of

his sentencing hearing, and did not file a written notice of appeal from the trial court’s



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SBM order. This Court has “interpreted SBM hearings and proceedings as civil, as

opposed to criminal, actions, for purposes of appeal. Therefore, ‘a defendant must

give [written] notice of appeal pursuant to N.C. R. App. P. 3(a),’ from an SBM

proceeding.” State v. Springle, ___ N.C. App. ___, ___, 781 S.E.2d 518, 520 (2016)

(quoting State v. Brooks, 204 N.C. App. 193, 194-95, 693 S.E.2d 204, 206 (2010)).

Failure to comply with N.C.R. App. P. 3 is a jurisdictional default “that prevents this

Court from acting in any manner other than to dismiss the appeal.” Id. (citation

omitted).

      Recognizing the defect in his notice of appeal, Defendant has petitioned this

Court for a writ of certiorari to consider his argument regarding, inter alia, the

sufficiency of the findings of fact in the SBM order. A writ of certiorari “may be issued

in appropriate circumstances by either appellate court to permit review of the

judgments and orders of trial tribunals when the right to prosecute an appeal has

been lost by failure to take timely action[.]” N.C.R. App. P. 21(a)(1). In our discretion,

we grant certiorari and consider Defendant’s argument.

      In addition to the jurisdictional defect created by Defendant’s failure to

properly file a written notice of appeal, the State contends Defendant’s argument

regarding the sufficiency of the findings of fact in the SBM order is also unpreserved

due to Defendant’s failure to object when the SBM matter was heard, and contends

this Court may only consider this argument by invoking N.C.R. App. P. 2.              We



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disagree that invocation of N.C.R. App. P. 2 is necessary. N.C. Gen. Stat. § 15A-

1446(d) provides that when a defendant asserts that a “sentence imposed was

unauthorized at the time imposed, exceeded the maximum authorized by law, was

illegally imposed, or is otherwise invalid as a matter of law[,]” appellate review of

such errors may be obtained regardless of whether an objection was made at trial.

N.C. Gen. Stat. § 15A-1446(d)(18) (2015); see also State v. Hunt, 221 N.C. App. 48, 53,

727 S.E.2d 584, 588-89 (2012). 2 Therefore, Defendant’s argument was preserved,

notwithstanding his failure to object in the trial court, and we proceed to the merits

of Defendant’s argument.

        While Defendant contends that this case is controlled by the sentencing

procedures set forth in N.C. Gen. Stat. § 14-208.40B, we find that the procedures set

forth in N.C. Gen. Stat. § 14-208.40A are applicable. This Court has held that

N.C.G.S. § 14-208.40B applies “in cases in which the offender has been convicted of

an applicable conviction and the trial court has not previously determined whether

the offender must be required to enroll in SBM.” State v. Kilby, 198 N.C. App. 363,

367, 679 S.E.2d 430, 432-33 (2009); see also N.C. Gen. Stat. § 14-208.40B(a) (2015).

N.C.G.S. § 14-208.40A, on the other hand, applies in cases in which the SBM

determination was made “during the sentencing phase.”                      N.C. Gen. Stat. § 14-


        2 While not controlling, we note that this Court has held, in a recent unpublished opinion, that
N.C.G.S. § 15A-1446(d)(18) preserved a defendant’s right to appeal an SBM order when the defendant
failed to object at the SBM hearing. See State v. Egan, ___ N.C. App. ___, ___ S.E.2d ___, 2016 N.C.
App. LEXIS 148, at *5-6 (2016) (unpublished).

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208.40A(a); see also Kilby, 198 N.C. App. at 367, 679 S.E.2d at 432 (noting that the

procedure set forth in N.C. Gen. Stat. § 14-208.40A “applies in cases in which the

district attorney has requested that the trial court consider SBM during the

sentencing phase of an applicable conviction”).           The SBM determination in the

present case was made at the time Defendant was sentenced; therefore, N.C.G.S. §

14-208.40A controls.

      When an offender is convicted of a “reportable conviction” as that term is

defined by N.C. Gen. Stat. § 14-208.6(4), N.C.G.S. § 14-208.40A(a) instructs that the

district attorney

             shall present to the court any evidence that (i) the offender
             has been classified as a sexually violent predator pursuant
             to G.S. 14-208.20, (ii) the offender is a recidivist, (iii) the
             conviction offense was an aggravated offense, (iv) the
             conviction offense was a violation of G.S. 14-27.23 or G.S.
             14-27.28, or (v) the offense involved the physical, mental,
             or sexual abuse of a minor.

N.C. Gen. Stat. § 14-208.40A(a) (2015). Once this evidence has been presented, the

trial court must determine “whether the offender’s conviction places the offender in

one of the categories described in G.S. 14-208.40(a), and if so, shall make a finding of

fact of that determination, specifying” in which of the five categories listed in N.C.G.S.

§ 14-208.40A(a) the offense fits. N.C. Gen. Stat. § 14-208.40A(b). Then, and as

relevant to the present case,

             [i]f the court finds that the offender committed an offense
             that involved the physical, mental, or sexual abuse of a
             minor, that the offense is not an aggravated offense or a

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                                          Opinion of the Court



                violation of G.S. 14-27.23 or G.S. 14-27.28 and the offender
                is not a recidivist, the court shall order that the Division of
                Adult Correction do a risk assessment of the offender.

N.C. Gen. Stat. § 14-208.40A(d) (2015). After receiving the risk assessment from the

Division of Adult Correction, the trial court must “determine whether, based on the

Division of Adult Correction’s risk assessment, the offender requires the highest

possible level of supervision and monitoring.” N.C. Gen. Stat. § 14-208.40A(e) (2015).

A “Moderate-High” risk assessment “still constitutes ‘Moderate’ for the purposes of

our precedent,” State v. Smith, ___ N.C. App. ___, ___ n.1, 769 S.E.2d 838, 840 n.1

(2015), and a “risk assessment of ‘moderate,’ without more, is insufficient to support

the finding that a defendant requires the highest possible level of supervision and

monitoring.” State v. Green, 211 N.C. App. 599, 601, 710 S.E.2d 292, 294 (2011)

(emphasis in original). “If the court determines that the offender does require the

highest possible level of supervision and monitoring, the court shall order the offender

to enroll in a satellite-based monitoring program for a period of time to be specified

by the court.” N.C.G.S. § 14-208.40A(e).

        In the present case, Defendant was convicted of statutory rape in violation of

N.C. Gen. Stat. § 14-27.7A(a), and the trial court found as fact that such conviction

was one of the categories described in N.C. Gen. Stat. § 14-208.40(a).3 The trial court


        3 One of the “categories described” in N.C.G.S. § 14-208.40(a) is “an offender [who] is convicted
of a reportable conviction as defined by G.S. 14-208.6(4)[.]” N.C. Gen. Stat. § 14-208.40(a). N.C. Gen.
Stat. § 14-208.6(4), in turn, defines “reportable conviction” as, inter alia, “a sexually violent offense.”



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further found as fact that: (1) Defendant had not been classified as a sexually violent

predator under the procedure set out in N.C. Gen. Stat. § 14-208.20; (2) Defendant

was not a recidivist; (3) the offense was not an aggravated offense; and (4) the offense

did involve the physical, mental, or sexual abuse of a minor. Given these findings,

all undisputed, Defendant’s offense falls within N.C.G.S. § 14-208.40A(d) and (e), that

required the Division of Adult Correction to complete a risk assessment.

        The Static-99 in the present case revealed a risk assessment of four points,

which translated into a “Moderate-High” risk category. Pursuant to Smith and

Green, a “Moderate-High” risk category was insufficient to support a finding that the

highest possible level of supervision and monitoring was required. Smith, ___ N.C.

App. at ___ n.1, 769 S.E.2d at 840 n.1; Green, 211 N.C. App. at 601, 710 S.E.2d at 294.

Nevertheless, the trial court found that Defendant required the highest possible level

of supervision and monitoring “based on the risk assessment of the Division of Adult

Correction,” and did not make any further findings of fact as to why SBM was

appropriate. This finding was in error, and requires us to vacate the SBM order.4




N.C. Gen. Stat. § 14-208.6(4). Sexually violent offense is, in turn, defined as including, inter alia, “a
violation of . . . G.S. 14-27.25(a).” N.C. Gen. Stat. § 14-208.6(5). N.C.G.S. § 14-27.7A, of which
Defendant was convicted, was later recodified at N.C. Gen. Stat. § 14-27.25(a) in 2015. See 2015 N.C.
Sess. Laws ch. 181 § 7(a). Therefore, Defendant’s conviction qualified as a reportable conviction.
        4 Defendant asks this Court to “reverse” the SBM order rather than “vacate” it. While there

is some support for reversal rather than vacatur in our precedent, see, e.g., Kilby, 198 N.C. App. 363,
370-71, 679 S.E.2d 430, 434-35 (2009), in cases where this Court has chosen to remand the matter for
further proceedings – which as explained below, we do here – this Court has chosen to “vacate” the
SBM order. E.g., State v. Thomas, 225 N.C. App. 631, 634-35, 741 S.E.2d 384, 387 (2013). Following
that precedent, we do the same.

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      Relying on State v. Causby, 200 N.C. App. 113, 117, 683 S.E.2d 262, 265 (2009),

Defendant argues this Court should simply vacate the order without remand to the

trial court for further findings of fact regarding the appropriate level of supervision.

In Causby, the Court noted that the defendant’s risk assessment was “moderate,” and

that the trial court’s finding “that the defendant requires the highest possible level of

supervision and monitoring” was inappropriate considering no additional findings of

fact were made. Id. at 115-16, 683 S.E.2d at 264. Relying on this Court’s previous

decision in State v. Kilby, 198 N.C. App. 363, 679 S.E.2d 430 (2009), this Court

considered whether remand for further findings of fact was appropriate:

             The State did not present evidence which could support a
             finding that “defendant requires the highest possible level
             of supervision and monitoring.” The DOC assessment of
             defendant rated him as a moderate risk. The State’s other
             evidence indicated that defendant was fully cooperating
             with his post release supervision, which might support a
             finding of a lower risk level, but not a higher one. As no
             evidence was presented which tends to indicate that
             defendant poses a greater than “moderate” risk or which
             would demonstrate that “defendant requires the highest
             possible level of supervision and monitoring[,]” we need not
             remand this matter to the trial court for additional findings
             of fact as requested by the State. Consequently, we reverse
             the trial court’s order.

Causby, 200 N.C. App. at 116, 683 S.E.2d at 264 (quoting Kilby, 198 N.C. App. at 370,

679 S.E.2d at 434).

      We find the present case distinguishable from Causby and Kilby.             In the

present case, the trial court assumed – and the prosecution agreed, incorrectly – that


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Defendant’s risk assessment score on the Static-99 left the decision whether to impose

satellite-based monitoring within the trial court’s discretion.      The prosecution

nevertheless attempted to present additional evidence at the SBM hearing that the

highest level of supervision and monitoring was required, but was not permitted by

the trial court to do so:

              [Prosecutor]: Your Honor, the state would ask that
              [Defendant], we find that he does require the highest level
              of supervision. Your Honor, [Defendant] was a, I think it
              was four points which is moderate to high. In addition to
              that, [Defendant] is a person who has committed a very
              serious –

              THE COURT: I know that. Just argue to me about the time
              period.

Because the State was not permitted to complete its argument regarding additional

factors that made, in the State’s view, the highest level of supervision and monitoring

appropriate, we are unable to determine if that evidence “could support a finding that

‘defendant requires the highest possible level of supervision and monitoring.’”

Causby, 200 N.C. App. at 116, 683 S.E.2d at 264. Given that the State attempted to

introduce additional evidence regarding whether the highest level of supervision and

monitoring was required, but was unable to do so, we find the present case

distinguishable from Causby and Kilby. We therefore remand to the trial court for

further findings of fact as to whether the highest possible level of supervision and

monitoring is appropriate.

                            C. Defendant’s Remaining Arguments

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                                   STATE V. DYE

                                 Opinion of the Court



      In light of our determination that the SBM order must be vacated and

remanded for a new hearing, we do not address Defendant’s argument that the SBM

order must also be vacated because enrollment in SBM violated Defendant’s right to

be free from unreasonable searches under the Fourth Amendment and the United

States Supreme Court’s decision in Grady v. North Carolina, ___ U.S. ___, 191 L. Ed.

2d 459 (2015). We also dismiss Defendant’s argument that he received ineffective

assistance of counsel (“IAC”), as our allowance of certiorari and vacatur of the SBM

order renders that argument moot. See In re K.C., 226 N.C. App. 452, 463, 742 S.E.2d

239, 246-47 (2013) (declaring an appellant’s IAC claim premised on trial counsel’s

failure to properly preserve an argument for appellate review to be moot when the

unpreserved argument was addressed and found to be meritorious, notwithstanding

improper preservation).

     NO ERROR IN PART; DISMISSED IN PART; VACATED AND REMANDED
IN PART.

      Judges HUNTER, JR. and DAVIS concur.




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