{ "id": 4178176, "name": "STATE OF NORTH CAROLINA v. LEON OXENDINE, JR.", "name_abbreviation": "State v. Oxendine", "decision_date": "2010-08-03", "docket_number": "No. COA09-858", "first_page": "205", "last_page": "216", "citations": [ { "type": "official", "cite": "206 N.C. App. 205" } ], "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": "683 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "758-59", "parenthetical": "dismissing defendant's constitutional challenge to the SBM statute where defendant failed to raise the issue in the trial court" } ], "opinion_index": 0 }, { "cite": "185 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "144" } ], "opinion_index": 0 }, { "cite": "280 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570073 ], "year": 1971, "pin_cites": [ { "page": "131-32" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0127-01" ] }, { "cite": "693 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "206" } ], "opinion_index": 0 }, { "cite": "677 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(la)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "683 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2009, "pin_cites": [ { "parenthetical": "applying and adopting the holding in Kilby" }, { "page": "263" }, { "page": "263" } ], "opinion_index": 0 }, { "cite": "679 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2009, "pin_cites": [ { "parenthetical": "concluding that the findings of fact were insufficient to support the trial court's conclusion that \"defendant required the highest possible level of supervision and monitoring\" based upon a \"moderate\" risk assessment from DOC" }, { "page": "432" }, { "parenthetical": "alteration in original" }, { "page": "433" }, { "page": "434" }, { "page": "434" } ], "opinion_index": 0 }, { "cite": "17 M.J. 218", "category": "reporters:specialty", "reporter": "M.J.", "case_ids": [ 3547889 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/mj/17/0218-01" ] }, { "cite": "23 M.J. 399", "category": "reporters:specialty", "reporter": "M.J.", "year": 1987, "opinion_index": 1 }, { "cite": "22 M.J. 649", "category": "reporters:specialty", "reporter": "M.J.", "case_ids": [ 3536448 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "650" } ], "opinion_index": 1, "case_paths": [ "/mj/22/0649-01" ] }, { "cite": "27 M.J. 161", "category": "reporters:specialty", "reporter": "M.J.", "year": 1988, "opinion_index": 1 }, { "cite": "25 M.J. 676", "category": "reporters:specialty", "reporter": "M.J.", "case_ids": [ 3571765 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/mj/25/0676-01" ] }, { "cite": "443 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "30", "parenthetical": "interpreting military law" }, { "page": "30" }, { "page": "30" } ], "opinion_index": 1 }, { "cite": "336 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538239 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "170", "parenthetical": "interpreting military law" }, { "page": "169" } ], "opinion_index": 1, "case_paths": [ "/nc/336/0142-01" ] }, { "cite": "397 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "327 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499478 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc/327/0470-01" ] }, { "cite": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 1 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "494", "parenthetical": "quoting McDougall, 308 N.C. at 18, 301 S.E.2d at 319" } ], "opinion_index": 1 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "pin_cites": [ { "page": "321", "parenthetical": "quoting McDougall, 308 N.C. at 18, 301 S.E.2d at 319" } ], "opinion_index": 1, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "450 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "883" }, { "page": "883" }, { "page": "884" }, { "page": "883-84" }, { "page": "884" } ], "opinion_index": 1 }, { "cite": "338 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519398 ], "year": 1994, "pin_cites": [ { "page": "403" } ], "opinion_index": 1, "case_paths": [ "/nc/338/0394-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "692 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2010, "pin_cites": [ { "page": "420" }, { "page": "418" }, { "page": "419-20" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 11, "year": 2009, "pin_cites": [ { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "year": 2009, "pin_cites": [ { "page": "(a)(2)" }, { "page": "(a)(2)" }, { "page": "(a)" }, { "page": "(a)(1)" }, { "page": "(a)(2)" }, { "page": "(a)(l)" }, { "page": "(a)(2)" }, { "page": "404" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 898, "char_count": 28167, "ocr_confidence": 0.752, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.3783222496755602 }, "sha256": "1aea4429f3ee0dd2b3f25ab4df969f9f402c12fa17f03764614a1326083bc747", "simhash": "1:0bebe561c61b05e0", "word_count": 4576 }, "last_updated": "2023-07-14T18:24:03.194595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ERVIN concurs.", "Judge STROUD concurs in the result with separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. LEON OXENDINE, JR." ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nLeon Oxendine, Jr. (\u201cdefendant\u201d) was ordered to enroll in satellite-based monitoring (\u201cSBM\u201d) for ten years after release from prison for sexual crimes to which defendant pled guilty. Defendant now appeals from the trial court\u2019s judgment arguing that the court erred by (1) finding defendant required the \u201chighest possible level of supervision and monitoring\u201d and (2) ordering defendant to enroll in SBM given that the Department of Corrections\u2019 (\u201cDOC\u201d) risk assessment determined defendant was a low level risk. In addition, defendant argues that, in the event this Court fails to reverse his sentence based on the aforementioned assignments of error, the Court should hold the SBM statute unconstitutional on due process grounds for vagueness or lack of statutory notice. With regard to defendant\u2019s appeal, the State concedes that the trial court\u2019s judgment should be vacated due to defendant\u2019s low risk assessment, and in light of this Court\u2019s recent decisions in State v. Kilby, - N.C. App. -, 679 S.E.2d 430 (2009) (concluding that the findings of fact were insufficient to support the trial court\u2019s conclusion that \u201cdefendant required the highest possible level of supervision and monitoring\u201d based upon a \u201cmoderate\u201d risk assessment from DOC), and State v. Causby, N.C. App. -, 683 S.E.2d 262 (2009) (applying and adopting the holding in Kilby). As Kilby and Causby are controlling, and defendant was assessed to be a \u201clow\u201d level risk, we reverse the decision of the trial court. However, in light of State v. McCravey, - N.C. App. -, -, S.E. -, - 2010 N.C. App. LEXIS 722 (filed 4 May 2010) (No. COA09-712) (holding that second-degree rape pursuant to N.C. Gen. Stat. \u00a7 14-27.3(a) (2009) is an aggravated offense as defined by the statute), we remand to the trial court for entry of an order consistent with this Court\u2019s present ruling.\nI. FACTUAL BACKGROUND\nOn 8 September 2008, defendant was indicted for three counts of second-degree rape involving a mentally disabled victim, two counts of statutory rape by a defendant more than six years older than the victim, and five counts of statutory sex offense by a defendant in a parental role. On 9 March 2009, defendant pled guilty to all charges following a plea agreement with the State. The trial court consolidated the convictions for judgment and sentenced defendant to an active term of 173 to 217 months\u2019 imprisonment.\nAfter defendant was sentenced, the trial court attempted to assess defendant\u2019s SBM eligibility on three occasions \u2014 occurring on 9 March 2009 and 10 March 2009 \u2014 after a request was made to do so by the State pursuant to N.C. Gen. Stat. \u00a7 14-208.40A (2009).\nIn its first assessment, on 9 March 2009, the trial court made several findings of fact, relying on AOC-CR-615 \u2014 Judicial'Findings and Order for Sex Offenders, including that defendant: (1) was convicted of an offense against a minor, (2) was not classified as a sexually violent offender, (3) was not a recidivist, (4) the offense of conviction was not an aggravated offense, and (5) that the offense of conviction involved the physical, mental or sexual abuse of a minor. Based on these findings, the court ordered that defendant enroll in the SBM program upon his release from prison. The court did not require that DOC'conduct a Static 99 risk assessment or specify a particular duration for the monitoring. Defendant\u2019s counsel gave immediate notice of appeal to the trial court\u2019s order and expressed doubts about the correctness of the court\u2019s determination.\nAfter a brief recess, the trial court struck its initial order and findings of fact and in its second assessment, again relying on AOC-CR-615, made essentially the same findings of fact, except that the court specifically noted that defendant had been convicted of the reportable conviction of rape of a child under the age of twelve as a principal, in violation of N.C. Gen. Stat. \u00a7 14-27.2A (2009). Moreover, when asked whether the evidence supported a finding that the offense of conviction was an aggravated offense, the State specifically stated that defendant\u2019s conviction was not an aggravated offense. After conducting its findings, the court acknowledged that DOC had not conducted a Static- 99 risk assessment, but nonetheless ordered that defendant enroll in SBM for his natural life following his release from prison. Subsequently, the trial court struck the findings in its second order after the prosecutor notified the trial court that N.C.G.S. \u00a7 14-27.2A was inapplicable because defendant\u2019s victims were not under the age of twelve as required by the statute.\nIn its third assessment of defendant\u2019s SBM eligibility, the trial court again made findings of fact pursuant to AOC-CR-615 and specifically found that defendant\u2019s convictions for second-degree rape were aggravated offenses, as defined by N.C. Gen. Stat. \u00a7 14-208.6(la) (2009). Before the trial court\u2019s findings were made, when asked a second time whether defendant\u2019s conviction was an aggravated offense, the State answered\nNo, sir. The definition of aggravated offense is by force or engaging in a sexual act involving vaginal, anal or oral penetration where the victim was less than 12. And the crimes that he is charged with are not forceable. .\nThat the second-degree rape was due to the mental retardation of the child, of the woman, and the statutory crimes were not enforceable [sic].\nAfter the trial court inquired as to whether defendant had pled guilty to second-degree rape, the State replied in the affirmative, and stated that \u201cthe allegation in the indictment was that \u2014 it could be force that the victim was mentally retarded\u201d and that, since \u201cit is alleged by force and against their will[,] I would concur, then, that that is an aggravated offense.\u201d Before determining whether defendant should enroll in SBM upon his release for life or for a specific number of years, the trial court ordered DOC to conduct a Static 99 risk assessment of defendant. Chief Probation and Parole Officer Tom Grant conducted defendant\u2019s risk assessment, and on 10 March 2009, testified that defendant\u2019s answers generated a score of \u201c1,\u201d placing him in a \u201clow\u201d category. Based on this and further discussion, the trial court again struck its findings of fact from the previous SBM eligibility assessment.\nIn its final assessment, the trial court again made the same findings of fact as it had in the previous assessment, except that the court found that defendant had not been convicted of an aggravated offense. During this assessment, the trial court acknowledged that there had been disagreement about whether second-degree rape was an aggravated offense. However, at this time, the court specifically asked the State, \u201c[a]s I understand it, the contention was that the 18-year-old [victim] had some mental instability while there was not even actual physical force with the threat of serious violence to that victim; is that correct?\u201d The State responded, \u201c[t]hat\u2019s correct!]\u201d without explicitly objecting to any aspect of the trial court\u2019s order. Based on the findings, the trial court ultimately ordered that defendant be enrolled in the SBM program for a period of ten years upon his release from prison. Defendant gave oral notice of appeal from the court\u2019s 10 March 2009 order.\nII. ISSUES ON APPEAL\nDefendant raises three issues on appeal: (1) whether the trial court erred in finding that defendant required the \u201chighest possible level of supervision and monitoring\u201d and by ordering him to enroll in SBM; (2) whether the SBM statutes are facially unconstitutional and, as applied to defendant, violate both state and federal provisions for vagueness and overbreath; and (3) whether the trial court\u2019s order violates defendant\u2019s due process rights. In the absence of evidence sufficient to contradict DOC\u2019s risk assessment, the State concedes that the trial court\u2019s order requiring that defendant receive the \u201chighest possible level of supervision and monitoring\u201d and enroll in SBM for a period of ten years following his release from prison should be vacated. Based on the analysis below, we reverse the trial court\u2019s order.\nWe also note that the State filed a Petition for Writ of Certiorari concurrent with its brief arguing that defendant should nonetheless be required to enroll in lifetime SBM given that he pled guilty to three counts of second-degree rape of a mentally disabled victim, an aggravated offense as defined by N.C.G.S. \u00a7 14-208.6(1a). In light of this Court\u2019s decision in McCravey, - N.C. App. at -, - S.E.2d at - (holding as an issue of first impression, that second-degree rape pursuant to N.C.G.S. \u00a7 14-27.3(a) is an aggravated offense as defined by the statute), and the extensive discussion of this issue in the trial court, we grant the State\u2019s petition for certiorari.\nIII. GROUNDS FOR APPELLATE REVIEW OF DEFENDANT\u2019S APPEAL\nWe note that defendant gave oral notice of appeal at the SBM hearing from the trial court\u2019s final order. SBM hearings and proceedings are civil regulatory proceedings; therefore, defendant\u2019s oral notice of appeal is insufficient to confer jurisdiction on this Court. State v. Bare, - N.C. App. -, -, 677 S.E.2d 518, 527 (2009); see State v. Brooks, - N.C. App. -, -, 693 S.E.2d 204, 206 (2010) (holding that oral notice of appeal from an SBM hearing or proceeding is insufficient to confer jurisdiction on this Court, and instructing that a defendant must, instead, give written notice of appeal with the clerk of superior court and serve copies of such notice upon all parties pursuant to N.C.R. App. R 3(a)). However, in the interest of justice, and to expedite the decision in the public interest, we ex mero motu treat defendant\u2019s brief as a petition for certiorari and grant said petition to address the merits of defendant\u2019s appeal.\nIV. ANALYSIS\nA. Standard of Review\nThe Court recently stated in State v. Kilby that \u201cwhether \u2018[an] offender requires the highest possible level of supervision and monitoring],]\u2019 is neither clearly a question of fact nor a conclusion of law.\u201d Kilby, - N.C. App. at -, 679 S.E.2d at 432. The Court in Kilby held that, on appeal, the trial court\u2019s order should be reviewed to ensure that \u201cthe determination that \u2018defendant requires the highest possible level of supervision and monitoring\u2019 \u2018reflects] a correct application of law to the facts found.\u2019 \u201d Id. (alteration in original).\nB. SBM Hearing Procedure\nWhere, as in the present case, a defendant has been convicted of a reportable offense pursuant to N.C.G.S. \u00a7 14.208.6(4) involving the physical, mental or sexual abuse of a minor and the district attorney has requested that the trial court consider SBM during the defendant\u2019s sentencing hearing pursuant to N.C.G.S. \u00a7 14.208.40A, the trial court is required to base its determination that defendant enroll in SBM on evidence presented during two phases \u2014 a \u201cqualification\u201d phase and a \u201crisk assessment\u201d phase. Causby, - N.C. App. at -, 683 S.E.2d at 264 (citing Kilby, - N.C. App. at -, 679 S.E.2d at 433).\nDuring the qualification phase, the Court in Causby provides that the following events must occur:\n[First,] the \u201cdistrict attorney shall present to the court any evidence\u201d that the defendant falls into one of five categories: \u201c(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. 14-27.2A or G.S. 14-27.4A, or (v) the offense involved the physical, mental, or sexual abuse of a minor.\u201d N.C. Gen. Stat. \u00a7 14-208.40A(a). [Second,] [u]pon receipt of the evidence from the State and any contrary evidence from the offender, the trial court is required to determine \u201cwhether the offender\u2019s conviction places the offender\u201d in one of the five categories and to \u201cmake a finding of fact of that determination,\u201d specifying the category into which the offender falls. N.C. Gen. Stat. \u00a7 14-208.40A(b).\nId. In the present case, defendant pled guilty to several reportable offenses as defined by N.C.G.S. \u00a7 14-208.6(4) and the trial court, after receiving evidence from the State, found that defendant\u2019s offense involved the physical, mental, or sexual abuse of a minor. Defendant does not argue that the trial court erred in making this determination during the qualification phase, thus we do not question nor address its accuracy on appeal.\nWhere the reportable offense involves the physical, mental, or sexual abuse of a minor, and the defendant was not convicted of an aggravated offense, or determined to be a recidivist or a sexually violent predator, the trial court must order that DOC conduct a Static 99 risk assessment of the defendant. N.C.G.S. \u00a7 14-208.40A(d). If the trial court determines that the defendant requires the \u201chighest possible level of supervision and monitoring\u201d based on DOC\u2019s Static 99 risk assessment that defendant poses a \u201chigh\u201d risk of re-offending, the court is required to order the defendant to enroll in a satellite-based monitoring program for a period of time to be specified by the court. N.C.G.S. \u00a7 14-208.40A(e); Causby, - N.C. App. at -, 683 S.E.2d at 263; Kilby, - N.C. App. at -, 679 S.E.2d at 434.\nIn the present case, DOC\u2019s Static 99 risk assessment concluded that defendant posed a \u201clow\u201d risk of re-offending. Based solely on DOC\u2019s assessment, with no further findings of fact or additional evidence from the State to support its determination, the trial court found that defendant \u201crequires the highest possible level of supervision and monitoring\u201d and ordered defendant to enroll in SBM for a period of ten years following his release from prison. On appeal, the State concedes that the trial court\u2019s ruling should be vacated in light of defendant\u2019s \u201clow\u201d risk assessment and this Court\u2019s recent holdings in Kilby and Causby. In Kilby and Causby, our Court held that a DOC risk assessment of \u201cmoderate,\u201d without any other evidence as to the defendant\u2019s risk of recidivism, was insufficient to support the trial court\u2019s finding that defendant \u201crequires the highest possible level of supervision and monitoring.\u201d Causby, - N.C. App. at -, 683 S.E.2d at 263; Kilby, - N.C. App. at -, 679 S.E.2d at 434. Therefore, applying these holdings to the present case, the trial court\u2019s determination was clearly erroneous.\nDefendant\u2019s remaining assignments of error ask this Court to hold the SBM statute unconstitutional on due process grounds for vagueness or lack of statutory notice. Defendant did not raise the constitutionality of the SBM statute before the trial court by asserting an objection on this basis. \u201cAppellate courts will not ordinarily pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the trial court.\u201d State v. Cumber, 280 N.C. 127, 131-32, 185 S.E.2d 141, 144 (1971). Moreover, we note that this Court has previously rejected similar arguments to those presently raised by defendant where defendant failed to preserve the issue for appeal. See State v. Morrow, - N.C. App. -, -, 683 S.E.2d 754, 758-59 (2009) (dismissing defendant\u2019s constitutional challenge to the SBM statute where defendant failed to raise the issue in the trial court). As such, we dismiss defendant\u2019s remaining assignments of error.\nBased on the aforementioned, we reverse the trial court\u2019s order requiring defendant to enroll in SBM based on DOC\u2019s risk assessment of defendant. However, because we grant the State\u2019s petition for writ of certiorari, we remand this matter to the trial court to enter an appropriate order in light of McCravey.\nReversed and remanded.\nJudge ERVIN concurs.\nJudge STROUD concurs in the result with separate opinion.\n. Where the trial court finds that a male offender committed an offense involving the physical, mental, or sexual abuse of a minor, the court must order DOC to do a Static 99 risk assessment on the offender, allowing at least 30 days but not more than 60 days to complete the assessment. The Static 99 is an actuarial instrument normalized for use with adult males age 18 and older which involves taking answers from an offender to ten standard, predetermined questions, wherein the offender\u2019s answers are assigned a point value and tabulated, with the total determining whether the offender poses a low, moderate or high risk of recidivism.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." }, { "text": "STROUD, Judge,\nconcurring.\nI concur with the result reached by the majority opinion to the extent that it reverses the SBM order and remands to the trial court for entry of an order that defendant enroll in SBM for life under N.C. Gen. Stat. \u00a7 14-208.40A(c), as second-degree rape under N.C. Gen. Stat. \u00a7 14-27.3(a)(2) is an \u201caggravated offense\u201d as defined by N.C. Gen. Stat. \u00a7 14-208.6(la). I also agree that the trial court erred in finding that defendant required the \u201chighest possible level of supervision and monitoring\u201d where defendant\u2019s Department of Correction (\u201cDOC\u201d) risk assessment showed a level of \u201clow\u201d risk and the State presented no additional evidence as to defendant\u2019s risk of recidivism. However, I write separately on the issue of whether second-degree rape under N.C. Gen. Stat. \u00a7 14-208.6(la) is an aggravated offense because I believe that mere citation to State v. McCravey, - N.C. App. -, 692 S.E.2d 409 (2010) is not an adequate rationale for this holding, given the issues raised in this case. In addition, as the SBM statutes were recently enacted and have been the subject of much confusion as to proper application, I believe that a full analysis of the issue may be of some assistance to North Carolina\u2019s district attorneys, counsel for defendants, the DOC, and superior court judges, all of whom are working to address SBM cases in accordance with these new SBM statutes. I also agree with the majority that this Court should grant the State\u2019s petition for certiorari and review the issue of whether defendant\u2019s second-degree rape conviction was an aggravated offense.\nThe majority holds, and I concur, that second-degree rape under N.C. Gen. Stat. \u00a7 14-27.3(a)(2) (2007) is an \u201caggravated offense\u201d as defined by N.C. Gen. Stat. \u00a7 14-208.6(la) (2009). However, this case raises substantially different issues than State v. McCravey as to second-degree rape, and the arguments before the trial court all focused upon these very issues. As noted in the majority opinion, the trial court reconsidered whether defendant required SBM based upon commission of an \u201caggravated offense\u201d or a high risk of recidivism several times, and the fact that defendant\u2019s conviction involved a mentally disabled victim was the reason for much of the debate at the hearing. I therefore believe that a more in-depth analysis of the issue is in order.\nN.C. Gen. Stat. \u00a7 14-27.3(a) defines second-degree rape as follows:\nA person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:\n(1) By force and against the will of the other person; or\n(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.\nIn McCravey, this Court held that second-degree rape pursuant to N.C. Gen. Stat. \u00a7 14-27.3(a)(1) is an \u201caggravated offense.\u201d - N.C. App. at -, 692 S.E.2d at 420. However, this Court has not previously addressed the issue of whether second-degree rape under N.C. Gen. Stat. \u00a7 14-27.3(a)(2) is an \u201caggravated offense.\u201d Under subsection (a)(1), \u201cby force and against the will of the other person\u201d is a specific element of the crime, see N.C. Gen. Stat. \u00a7 14-27.3(a)(l), which satisfies the definition of an \u201caggravated offense\u201d under N.C. Gen. Stat. \u00a7 14-208.6(la) requiring commission of the sexual act \u201cthrough the use of force or the threat of serious violence[.]\u201d Id.\nIn McCravey, the defendant argued \u201cthat the statutory definition of \u2018aggravated offense\u2019 in N.C. Gen. Stat. \u00a7 14-208.6(la) is unconstitutionally vague because it does not specify what constitutes \u2018use of force[.]\u2019 \u201d Id. at -, 692 S.E.2d at 418. This Court considered the context and purpose of the SBM statute and the case law which has defined \u201cthe force required in a sexual offense of this nature.\u201d Id. at \u2014 , 692 S.E.2d at 419-20. In McCravey, we held that\nThe language of N.C. Gen. Stat. \u00a7 14-208.6(la) \u2014 \u2018through the use of force or the threat of serious violence\u2019 \u2014 reflects the established definitions as set forth in case law of both physical force and constructive force, in the context of the sexual offenses enumerated in N.C. Gen. Stat. \u00a7\u00a7 14-27.2, 14-27.3, 14-27.4, and 14-27.5. (emphasis added).\nThe legislature intended that the same definition of force, as has been traditionally used for second-degree rape, to apply to the determination under N.C. Gen. Stat. \u00a7 14-208.6(la) that an offense was committed by \u2018the use of force or the threat of serious violence.\u2019\nId. Although defendant herein was convicted of rape under subsection (a)(2), based upon sexual intercourse with a \u201cmentally disabled\u201d victim, our courts have previously held that attempted second-degree rape under N.C. Gen. Stat. \u00a7 14-27.3(a)(2) is a felony committed \u201cthrough the use of force or the threat of serious violence[.]\u201d See N.C. Gen. Stat. \u00a7 14-208.6(la). In State v. Holden, our Supreme Court considered the defendant\u2019s argument that a prior conviction of attempted second-degree rape should not be used as an aggravating factor supporting a sentence of death as a conviction of \u201ca felony involving the use of violence [pursuant to] N.C.G.S. \u00a7 15A-2000(e)(3) (1988).\u201d 338 N.C. 394, 403, 450 S.E.2d 878, 883 (1994). In Holden, the attempted second-degree rape conviction did not specify which subsection of N.C. Gen. Stat. \u00a7 14-27.3 formed the basis for defendant\u2019s conviction, and the defendant argued that\nno evidence was presented from which the jury could find beyond a reasonable doubt that the attempted second-degree rape involved violence or the threat of violence. He argues that because the State only offered proof of his conviction for second-degree rape by presenting the judgment, it failed to present evidence sufficient to prove the aggravating circumstance beyond a reasonable doubt. He reasons that the conviction is insufficient to prove the use of or threatened use of violence because second-degree rape may be predicated on sexual intercourse with a person who is mentally defective, mentally incapacitated, or physically helpless. N.C.G.S. \u00a7 14-27.3(a)(2) (1993).\nId. at 404, 450 S.E.2d at 883. The Supreme Court rejected this argument, holding that \u201cthe crime of attempted rape always involves at least a \u2018threat of violence\u2019 within the meaning of N.C.G.S. \u00a7 15A-2000(e)(3).\u201d Id. at 405, 450 S.E.2d at 884. The Court went on to explain that\n[t]his Court has concluded that for purposes of N.C.G.S. \u00a7 15A-2000(e)(3), rape is a felony which has as an element the use or threat of violence to the person. State v. Artis, 325 N.C. 278, 321, 384 S.E.2d 470, 494 (1989) (quoting McDougall, 308 N.C. at 18, 301 S.E.2d at 319), judgment vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604, on remand, 327 N.C. 470, 397 S.E.2d 223 (1990). We have further reasoned that where rape is deemed to have as an element the use or threat of violence, the \u2018felony of attempt to commit rape is therefore by nature of the crime a felony which threatens violence.\u2019 State v. Green, 336 N.C. 142, 170, 443 S.E.2d 14, 30 (1994) (interpreting military law). Under N.C.G.S. \u00a7 15A-2000(e)(3), \u2018[attempting to commit a crime which inherently involves violence obviously constitutes, at least, a \u2018threat of violence.\u201d Id. at 169, 443 S.E.2d at 30. Therefore, the judgment showing that the defendant had previously been convicted of attempted second-degree rape was sufficient, standing alone, to require that the trial court submit the aggravating circumstance that the defendant had committed a prior felony involving the use or threat of violence to the person.\nFor purposes of applying this aggravating circumstance, we reject the notion of any felony which may properly be deemed \u2018non-violent rape.\u2019 We believe that a more enlightened view of this matter has been expressed in the opinions of military courts which have been cited with approval by this Court. Under the Uniform Code of Military Justice, rape is always, and under any circumstances, deemed as a matter of law to be a crime of violence. United States v. Bell, 25 M.J. 676 (A.C.M.R. 1987), rev. denied, 27 M.J. 161 (C.M.A. 1988); United States v. Myers, 22 M.J. 649 (A.C.M.R. 1986), rev. denied, 23 M.J. 399 (C.M.A. 1987). As stated in Myers, military courts \u2018specifically reject the oxymoronic term of \u2018non-violent rape.\u2019 The more enlightened view is that rape is always a crime of violence, no matter what the circumstances of its commission.\u2019 Myers, 22 M.J. at 650. \u2018Among common misconceptions about rape is that it is a sexual act rather than a crime of violence.\u2019 United States v. Hammond, 17 M.J. 218, 220 n. 3 (C.M.A. 1984). Green, 336 N.C. at 169, 443 S.E.2d at 30. We conclude, for similar reasons, that the crime of attempted rape always involves at least a \u2018threat of violence\u2019 within the meaning of N.C.G.S. \u00a7 15A-2000(e)(3).\nId. at 404-05, 450 S.E.2d at 883-84. The Court also specifically rejected the argument that sexual intercourse with a person who is mentally defective, incapacitated, or statutorily deemed incapable of consenting does not necessarily involve force or a threat of violence.\nThe acts of having or attempting to have sexual intercourse with another person who is mentally defective or incapacitated and statutorily deemed incapable of consenting \u2014 -just as with a person who refuses to consent \u2014 involve the \u2018use or threat of violence to the person\u2019 within the meaning of N.C.G.S. \u00a7 15A-2000(e)(3). In this context, the force inherent to having sexual intercourse with a person who is deemed by law to be unable to consent is sufficient to amount to \u2018violence\u2019 as contemplated by the General Assembly in this statutory aggravating circumstance. Likewise, the attempt to have sexual intercourse with such a person inherently includes a threat of force sufficient to amount to a \u2018threat of violence\u2019 within the meaning of this aggravating circumstance.\nId. at 406, 450 S.E.2d at 884.\nCertainly, if the crime of attempted second-degree rape is a crime which \u201calways involves at least a threat of violence\u201d for purposes of an aggravating factor which may support a sentence of death, there is no reason to consider second-degree rape any differently in the context of enrollment in SBM. I therefore concur with the majority in remand of this matter to the trial court for entry of an order that defendant enroll in SBM for life after his release from prison, pursuant to N.C. Gen. Stat. \u00a7 14-208.40A(c) (2009).\nI therefore concur.", "type": "concurrence", "author": "STROUD, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Joseph Finarelli, for the State.", "James W. Carter for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LEON OXENDINE, JR.\nNo. COA09-858\n(Filed 3 August 2010)\n1. Appeal and Error\u2014 oral notice of appeal insufficient \u2014 satellite-based monitoring hearing \u2014 civil in nature\nDefendant\u2019s oral notice of appeal from an order imposing satellite-based monitoring (SBM) upon him was insufficient to confer jurisdiction on the Court of Appeals as SBM hearings and proceedings are civil regulatory proceedings. The Court treated defendant\u2019s brief as a petition for certiorari and granted said petition to address the merits of defendant\u2019s appeal.\n2. Satellite-Based Monitoring \u2014 low risk assessment \u2014 judgment vacated\nThe trial court erred in finding that defendant required the highest possible level of supervision and monitoring and ordering defendant to enroll in satellite-based monitoring where the Department of Corrections\u2019 risk assessment determined that defendant was a low level risk.\nJudge STROUD concurs in the result with separate opinion.\nAppeal by defendant from judgment entered 10 March 2009, by Judge James M. Webb in Rockingham County Superior Court. Heard in the Court of Appeals 3 December 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Joseph Finarelli, for the State.\nJames W. Carter for defendant appellant." }, "file_name": "0205-01", "first_page_order": 229, "last_page_order": 240 }