{ "id": 4176186, "name": "STATE OF NORTH CAROLINA v. ROBERT WAYNE PHILLIPS, Defendant", "name_abbreviation": "State v. Phillips", "decision_date": "2010-04-06", "docket_number": "No. COA09-1105", "first_page": "326", "last_page": "332", "citations": [ { "type": "official", "cite": "203 N.C. App. 326" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-27.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "2006 N.C. Sess. Laws 1065", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "2008 N.C. Sess. Laws 426", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "678 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "700", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-318.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2009, "pin_cites": [ { "page": "(a2)" }, { "page": "(a2)" }, { "page": "(a2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2009, "pin_cites": [ { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)", "parenthetical": "providing that, for an offense to be an \"aggravated offense,\" the victim must be \"less than 12 years old\"" }, { "page": "(la)", "parenthetical": "providing that, for an offense to be an \"aggravated offense,\" it must be committed against either (1) a victim \"who is less than 12 years old,\" or (2) a victim of any age \"through the use of force or the threat of serious violence\"" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.40", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "page": "(a)(l)" }, { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 579, "char_count": 16943, "ocr_confidence": 0.743, "pagerank": { "raw": 9.63047859339624e-08, "percentile": 0.5274898266269578 }, "sha256": "e9fbf26a474f834dc950ea45363fa21266d5f48ddef4df87fec9be390b0e02f4", "simhash": "1:6da980612a2b0134", "word_count": 2796 }, "last_updated": "2023-07-14T21:32:21.116750+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and HUNTER, JR. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT WAYNE PHILLIPS, Defendant" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant Robert Wayne Phillips appeals from the trial court\u2019s order requiring him to enroll in a satellite-based monitoring program for the duration of his natural life. Because defendant was not convicted of an \u201caggravated offense\u201d as defined in N.C.G.S. \u00a7 14-208.6(la), we must reverse the trial court\u2019s order.\nDefendant was charged with the following offenses: first-degree rape of a child under the age of 13 years in violation of N.C.G.S. \u00a7 14-27.2(a)(l); first-degree sexual offense of a child under the age of 13 years in violation of N.C.G.S. \u00a7 14-27.4(a)(l); taking indecent liberties with a child in violation of N.C.G.S. \u00a7 14-202.1; contributing to the delinquency of a juvenile in violation of N.C.G.S. \u00a7 14-316.1; and felonious child abuse by the commission of any sexual act in violation of N.C.G.S. \u00a7 14-318.4(a2). Defendant entered pleas of guilty to felonious child abuse by the commission of any sexual act in violation of N.C.G.S. \u00a7 14-318.4(a2) and taking indecent liberties with a child in violation of N.C.G.S. \u00a7 14-202.1; the remaining charges of first-degree rape and first-degree sexual offense of a child and contributing to the delinquency of a juvenile were dismissed pursuant to' defendant\u2019s plea agreement.\nThe factual basis for defendant\u2019s plea was presented by the State without objection and with defendant\u2019s consent. According to this uncontested recitation of the facts, in January 2007, defendant was living with his girlfriend and her children, including her 10-year-old daughter, R.B. According to the State, although R.B. \u201chad indicated it had happened more than once,\u201d R.B. reported that, on 9 January 2007, the then-44-year-old defendant raped and sexually abused her. According to the State:\n[R.B.] stated that on this night that this defendant came into her room and, as she told officers initially at the spot, put his penis inside her privates as she pointed to her genitalia. When they asked her to be a little more specific about what occurred, she stated she was on her bed in her room when this defendant came into her room, started messing with her last night. This being talked about on the 10th of January. The defendant made her get on the floor near her window, pull her shorts and her underwear off. He then put his penis inside her and was moving around inside her. He pulled his penis out of her and some white stuff came out. Said that he caught the white stuff in his hand.\nR.B. was examined at the Teddy Bear Clinic and was found to have, \u201ca healed transaction at 8 o\u2019clock to the base of [her] hymen which is evidence of prior penetrating trauma which they said will be consistent with [R.B.\u2019s] allegation of sexual abuse.\u201d\nThe trial court sentenced defendant to an active term of imprisonment for a minimum of 25 months and a maximum of 39 months. Defendant was thereafter notified by the North Carolina Department of Correction that he was required to register as a sex offender upon his release from prison. On 8 June 2009, the trial court conducted a hearing to determine whether defendant was also required to submit to a satellite-based monitoring (\u201cSBM\u201d) program. The trial court determined that defendant had been convicted of one or more \u201caggravated offenses\u201d as defined in N.C.G.S. \u00a7 14-208.6(la), and so ordered defendant to enroll in a lifetime SBM program. Defendant gave notice of appeal from the trial court\u2019s order.\nDefendant contends the trial court erred when it found that his convictions of the offenses of taking indecent liberties with a child pursuant to N.C.G.S. \u00a7 14-202.1 and felonious child abuse by the commission of any sexual act pursuant to N.C.G.S. \u00a7 14-318.4(a2) are \u201caggravated offenses\u201d as defined in N.C.G.S. \u00a7 14-208.6(la), and that the trial court erred when it ordered him to enroll in a lifetime SBM program upon such findings.\nThe sex offender monitoring program set forth in Article 27A of the North Carolina General Statutes is \u201cdesigned to monitor three categories of offenders,\u201d one of which includes those offenders who are \u201cconvicted of an aggravated offense as . . . defined in [N.C.G.S. \u00a7] 14-208.6.\u201d See N.C. Gen. Stat. \u00a7 14-208.40(a)(l) (2009). As used in this Article, an \u201caggravated offense\u201d is \u201cany criminal offense that includes either\u201d: (i) \u201cengaging 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\u201d; or (ii) \u201cengaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.\u201d N.C. Gen. Stat. \u00a7 14-208.6(la) (2009); see State v. Davison, - N.C. App. -, -, S.E.2d -, -, (Dec. 8, 2009) (No. COA09-212) (\u201c [I]t is clear that an \u2018aggravated offense\u2019 is an offense including: first, a sexual act involving vaginal, anal or oral penetration; and second, either (1) that the victim is less than twelve years old or (2) the use of force or the threat of serious violence against a victim of any age.\u201d). When a trial court makes a determination, either pursuant to the procedures set forth in N.C.G.S. \u00a7\u00a7 I4-208.40A or 14-208.40B, that a conviction offense is an \u201caggravated offense,\u201d the General Assembly has provided that the trial court \u201cshall order the offender to enroll in [a] satellite-based monitoring [program] for life.\u201d See N.C. Gen. Stat. \u00a7\u00a7 14-208.40A(c), 14-208.40B(c) (2009).\nIn State v. Davison, - N.C. App. -, \u2014, S.E.2d - (Dec. 8, 2009) (No. COA09-212), this Court considered whether the trial court properly determined that a defendant convicted of attempted first-degree sex offense and of taking indecent liberties with a child had committed \u201caggravated offenses\u201d when the court based its determination in part upon the defendant\u2019s \u201crecitation of the underlying facts giving rise to his convictions.\u201d See Davison, - N.C. App. at -, -, S.E.2d at -. After reviewing the language of the statutes at issue, this Court held that the General Assembly\u2019s \u201crepeated use of the term \u2018conviction\u2019 \u201d compelled the conclusion that the trial court \u201cis only to consider the elements of the offense of which a defendant was con victed and is not to consider the underlying factual scenario giving rise to the conviction\u201d when determining whether a defendant\u2019s \u201cconviction offense [i]s an aggravated offense\u201d under the procedures set forth in N.C.G.S. \u00a7 14-208.40A. Davison, - N.C. App. at -, -, S.E.2d at - (emphasis added). Shortly after Davison was decided, this Court applied this same rule when determining whether a defendant\u2019s conviction offense was an \u201caggravated offense\u201d under the procedures set forth in N.C.G.S. \u00a7 14-208.40B. See State v. Singleton, - N.C. App. -, -, S.E.2d -, -, (Jan. 5, 2010) (No. COA09-263). Thus, in order for a trial court to conclude that a conviction offense is an \u201caggravated offense\u201d under the procedures of either N.C.G.S. \u00a7\u00a7 14-208.40A or 14-208.40B, this Court has determined that the elements of the conviction offense must \u201cfit within\u201d the statutory definition of \u201caggravated offense.\u201d See Singleton, \u2014 N.C. App. at -. -, S.E.2d at \u2014.\nIn Davison, this Court concluded that the elements of the offense of indecent liberties with a child under N.C.G.S. \u00a7 14-202.1(a) \u201crequires none of the . . . factors required by the definition of an \u2018aggravated offense\u2019 \u201d and, therefore, determined that the offense of indecent liberties with a child could not sustain the trial court\u2019s determination that the defendant was convicted of an \u201caggravated offense.\u201d See Davison, - N.C. App. at -, \u2014, S.E.2d at -. Consequently, in the present case, we must also conclude that defendant\u2019s conviction of the offense of taking indecent liberties with a child pursuant to N.C.G.S. \u00a7 14-202.1 is not an \u201caggravated offense\u201d and that any determination by the trial court to the contrary was in error. Therefore, we need only determine whether the trial court could properly conclude that defendant\u2019s conviction of the offense of felonious child abuse by the commission of any sexual act under N.C.G.S. \u00a7 14-318.4(a2) is an \u201caggravated offense\u201d as defined in N.C.G.S. \u00a7 14-208.6(la).\nN.C.G.S. \u00a7 14-318.4(a2) provides: \u201cAny parent or legal guardian of a child less than 16 years of age who commits or allows the commission of any sexual act upon the child is guilty of a Class E felony.\u201d N.C. Gen. Stat. \u00a7 14-318.4(a2) (2009). Consequently \u201c[t]he essential elements of felonious child abuse under subsection (a2) are (1) the defendant is a parent or legal guardian of (2) a child less than 16 years of age, (3) who commits or allows the commission of any sexual act upon that child.\u201d State v. Lark, - N.C. App. -, -, 678 S.E.2d 693, 700 (2009) (emphasis added), disc. review denied, \u2014 N.C. \u2014, \u2014, S.E.2d - (Jan. 28, 2010) (No. 325P09). In comparison, the statutory definition of \u201caggravated offense\u201d requires that the offender (1) \u201cengag[e] in a sexual act involving vaginal, anal, or oral penetration\u201d (2) \u201cwith a victim of any age through the use of force or the threat of serious violence . . . [or] with a victim who is less than 12 years old.\u201d N.C. Gen. Stat. \u00a7 14-208.6(la).\nThus, as defendant asserts in his brief and as the State concedes, an offender\u2019s conviction of felonious child abuse under N.C.G.S. \u00a7 14-318.4(a2) may or may not be a conviction which results from the commission of \u201ca sexual act involving . . . penetration,\u201d which is required for an offense to be considered an \u201caggravated offense\u201d under N.C.G.S. \u00a7 14-208.6(la). In other words, without a review of \u201cthe underlying factual scenario giving rise to the conviction,\u201d which is prohibited under Davison, see Davison, - N.C. App. at \u2014, -, S.E.2d at -, a trial court could not know whether an offender was convicted under N.C.G.S. \u00a7 14-318.4(a2) because he committed a sexual act involving penetration. In addition, while an \u201caggravated offense\u201d is an offense in which the offender has \u201cengag[ed] in\u201d a specific type of sexual act, an offender may be convicted of felonious child abuse by the commission of any sexual act as a result of either \u201ccommitting]\u201d any sexual act upon a child less than 16 years of age, or as a result of \u201callow[ing] the commission\u201d of any sexual act upon such a child. See N.C. Gen. Stat. \u00a7 14-318.4(a2). Thus, by examining the elements of the offense alone, a trial court could not determine whether a person convicted of felonious child abuse by the commission of any sexual act necessarily \u201cengag[ed] in\u201d a specific type of sexual act himself. Further, if an offense does not involve engaging in a sexual act through the use of force or threat of serious violence, the offense can only be found to be an \u201caggravated offense\u201d if it involves engaging in sexual acts involving penetration \u201cwith a victim who is less than 12 years old.\u201d See N.C. Gen. Stat. \u00a7 14-208.6(la). However, felonious child abuse by the commission of any sexual act provides that the victim must be \u201ca child less than 16 years of age.\u201d See N.C. Gen. Stat. \u00a7 14-318.4(a2). Since \u201ca child less than 16 years\u201d is not necessarily also \u201cless than 12 years old,\u201d without looking at the underlying facts, a trial court could not conclude that a person convicted of felonious child abuse by the commission of any sexual act committed that offense against a child less than 12 years old. Therefore, in light of our review of the plain language of the statutes at issue, we must conclude that the trial court erred when it determined that defendant\u2019s conviction offense of felonious child abuse by the commission of any sexual act under N.C.G.S. \u00a7 14-318.4(a2) is an \u201caggravated offense\u201d as defined under N.C.G.S. \u00a7 14-208.6(la) because, when considering the elements of the offense only and not the underlying factual scenario giving rise to this defendant\u2019s conviction, the elements of felonious child abuse by the commission of any sexual act do not \u201cfit within\u201d the statutory definition of \u201caggravated offense.\u201d See Singleton, - N.C. App. at -, -, S.E.2d at -. Because we must conclude that defendant was not convicted of an \u201caggravated offense\u201d in light of the rule in Davison, we must remand this matter to the trial court with instructions that it reverse its determination that defendant is required to enroll in a lifetime SBM program.\nIn light of our disposition, and since the trial court has already determined that defendant was neither classified as a sexually violent predator nor found to be a recidivist, we must conclude that the trial court\u2019s order requiring defendant to register as a sex offender for the duration of his natural life is also in error. However, this opinion does not preclude the trial court from ordering, on remand, that defendant register as a sex offender \u201cfor a period of 30 years.\u201d\nAdditionally, the trial court did not make findings with respect to item 5 in the \u201cFindings\u201d section of its order. However, the record indicates that the Department of Correction conducted a risk assessment on defendant and found that he \u201cscored one point\u201d and was deemed to be \u201clow risk.\u201d Therefore, even though it appears that the trial court could have found that defendant committed an offense that \u201cinvolve[d] the physical, mental, or sexual abuse of a minor,\u201d since the record indicates that defendant does not \u201crequire[] the highest possible level of supervision and monitoring,\u201d we conclude that the court cannot now order defendant to enroll in a SBM program for a period of time to be specified by the court pursuant to N.C.G.S. \u00a7 14-208.40B(c).\nReversed and remanded.\nJudges JACKSON and HUNTER, JR. concur.\n. At the time defendant committed the offenses in the underlying case, North Carolina\u2019s SBM program monitored two categories of offenders, both of which are still among the now-three categories of offenders monitored by the program. See N.C. Gen. Stat. \u00a7 14-208.40(a) (2009); 2008 N.C. Sess. Laws 426, 435, ch. 117, \u00a7 16; 2006 N.C. Sess. Laws 1065, 1074-75, ch. 247, \u00a7 15(a).\n. In Davison, the Court opined: \u201cThe State argues that, should we limit the trial court\u2019s examination to the elements of the offense, we would render only four crimes \u2018aggravated offenses\u2019 for the purpose of this statute. We are aware of this limitation, but we are bound by principles of statutory interpretation and we must not enter the realm of the General Assembly to extend the scope of the statute.\u201d See Davison, \u2014 N.C. App. at -, -, S.E.2d at -. The four offenses that the State asserted could be \u201caggravated\u201d under the \u201climitation\u201d of an elements-based approach were: first-degree rape under N.C.G.S. \u00a7 14-27.2; second-degree rape under N.C.G.S. \u00a7 14-27.3; first-degree sexual offense under N.C.G.S. \u00a7 14-27.4; and second-degree sexual offense under N.C.G.S. \u00a7 14-27.5. However, since the Davison Court did not examine any of these four offenses under the rule of that case, we do not believe that this dicta should be deemed to control which conviction offenses are \u201caggravated offenses,\u201d and so undertake our analysis of whether the elements of the conviction offense of felonious child abuse by the commission of any sexual act fits within the statutory definition of \u201caggravated offense.\u201d Compare N.C. Gen. Stat. \u00a7\u00a7 14-27.2(a)(l), 14-27.4(a)(l) (2009) (providing that an offender can be convicted of first-degree rape and first-degree sexual offense of a child when the victim is \u201cunder the age of 13 years\u201d), with N.C. Gen. Stat. \u00a7 14-208.6(la) (providing that, for an offense to be an \u201caggravated offense,\u201d the victim must be \u201cless than 12 years old\u201d); compare N.C. Gen. Stat. \u00a7\u00a7 14-27.3(a)(2), 14-27.5(a)(2) (2009) (providing that an offender can be convicted of second-degree rape and second-degree sexual offense against a victim \u201c[w]ho is mentally disabled, mentally incapacitated, or physically helpless\u201d where the offender knows or \u201cshould reasonably know\u201d that the victim is such), with N.C. Gen. Stat. \u00a7 14-208.6(la) (providing that, for an offense to be an \u201caggravated offense,\u201d it must be committed against either (1) a victim \u201cwho is less than 12 years old,\u201d or (2) a victim of any age \u201cthrough the use of force or the threat of serious violence\u201d).", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Joseph Finarelli, Assistant Attorney General, for the State.", "Richard, Croutharmel, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT WAYNE PHILLIPS, Defendant\nNo. COA09-1105\n(Filed 6 April 2010)\nSexual Offenses\u2014 satellite-based monitoring \u2014 finding of aggravated offenses \u2014 error\nThe trial court erred in finding that defendant\u2019s convictions for taking indecent liberties with a child pursuant to N.C.G.S. \u00a7 14-202.1 and felonious child abuse by the commission of any sexual act pursuant to N.C.G.S. \u00a7 14-318.4(a2) were \u201caggravated offenses\u201d as defined in N.C.G.S. \u00a7 14-208.6(la). Thus, the trial court erred in ordering defendant to enroll in a lifetime satellite-based monitoring program.\nAppeal by defendant from order entered 8 June 2009 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 9 February 2010.\nRoy Cooper, Attorney General, by Joseph Finarelli, Assistant Attorney General, for the State.\nRichard, Croutharmel, for defendant-appellant." }, "file_name": "0326-01", "first_page_order": 354, "last_page_order": 360 }