{ "id": 3806155, "name": "STATE OF NORTH CAROLINA v. JOSHUA NEWTON CLARK", "name_abbreviation": "State v. Clark", "decision_date": "2011-04-19", "docket_number": "No. COA10-403", "first_page": "60", "last_page": "77", "citations": [ { "type": "official", "cite": "211 N.C. App. 60" } ], "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": "513 U.S. 1046", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1331682, 1330819, 1331428, 1335068, 1330979, 1331686, 1330634, 1333776, 1330385, 1332081, 1334228, 1333815, 1334715, 1331292 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/513/1046-03", "/us/513/1046-06", "/us/513/1046-13", "/us/513/1046-02", "/us/513/1046-07", "/us/513/1046-05", "/us/513/1046-11", "/us/513/1046-12", "/us/513/1046-04", "/us/513/1046-08", "/us/513/1046-09", "/us/513/1046-10", "/us/513/1046-01", "/us/513/1046-14" ] }, { "cite": "635 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636861 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/635/0058-01" ] }, { "cite": "360 N.C. 544", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3791432, 3793804, 3794065, 3788665, 3796661, 3788377, 3792863 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0544-06", "/nc/360/0544-02", "/nc/360/0544-07", "/nc/360/0544-05", "/nc/360/0544-03", "/nc/360/0544-04", "/nc/360/0544-01" ] }, { "cite": "628 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635592 ], "year": 2006, "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0442-01" ] }, { "cite": "532 U.S. 931", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9315009, 9314948, 9314725, 9314822, 9314695, 9314661, 9314793, 9315113, 9314631, 9314863, 9315060, 9314585, 9314909 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/532/0931-11", "/us/532/0931-10", "/us/532/0931-05", "/us/532/0931-07", "/us/532/0931-04", "/us/532/0931-03", "/us/532/0931-06", "/us/532/0931-13", "/us/532/0931-02", "/us/532/0931-08", "/us/532/0931-12", "/us/532/0931-01", "/us/532/0931-09" ] }, { "cite": "531 U.S. 1165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9783616, 9783489, 9784512, 9784931, 9785068, 9784364, 9784782, 9784238, 9785236, 9783863, 9783992, 9784122, 9784638 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1165-02", "/us/531/1165-01", "/us/531/1165-08", "/us/531/1165-11", "/us/531/1165-12", "/us/531/1165-07", "/us/531/1165-10", "/us/531/1165-06", "/us/531/1165-13", "/us/531/1165-03", "/us/531/1165-04", "/us/531/1165-05", "/us/531/1165-09" ] }, { "cite": "664 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641584, 12641582, 12641583 ], "weight": 2, "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/664/0311-03", "/se2d/664/0311-01", "/se2d/664/0311-02" ] }, { "cite": "362 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12641516 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/663/0428-02" ] }, { "cite": "623 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634615 ], "year": 2006, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0351-01" ] }, { "cite": "656 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640375 ], "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0721-01" ] }, { "cite": "649 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639264, 12639263 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/649/0642-02", "/se2d/649/0642-01" ] }, { "cite": "631 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636084 ], "year": 2006, "pin_cites": [ { "page": "194-95", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0188-01" ] }, { "cite": "281 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "161", "parenthetical": "stating that \"[w]e do not agree, however, that penetration is required before cunninlingus, as that word is used in the statute, can occur\"" } ], "opinion_index": 0 }, { "cite": "303 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575112 ], "year": 1981, "pin_cites": [ { "page": "669", "parenthetical": "stating that \"[w]e do not agree, however, that penetration is required before cunninlingus, as that word is used in the statute, can occur\"" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0666-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 9, "year": 1984, "pin_cites": [ { "page": "688, 692" }, { "page": "693, 696" }, { "page": "2064, 2067" }, { "page": "693" }, { "page": "697" }, { "page": "2067" }, { "page": "694" }, { "page": "698" }, { "page": "2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "700 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "13" } ], "opinion_index": 0 }, { "cite": "364 N.C. 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152728 ], "year": 2010, "pin_cites": [ { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0335-01" ] }, { "cite": "700 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152648 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0422-01" ] }, { "cite": "683 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "400" }, { "page": "400" } ], "opinion_index": 0 }, { "cite": "115 S. 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Gen. Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(a)(l)" }, { "page": "(a)(l)" }, { "page": "(a)(l)" }, { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "702 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "347", "parenthetical": "first degree sexual offense" }, { "page": "33-34" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14.27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14.208.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. 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App. P. 3] are jurisdictional' \"" }, { "page": "242" } ], "opinion_index": 0 }, { "cite": "702 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "679 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 4156256 ], "pin_cites": [ { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0701-01" ] }, { "cite": "543 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "826" }, { "page": "828" } ], "opinion_index": 0 }, { "cite": "353 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135584 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "336" }, { "page": "336" }, { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0332-01" ] }, { "cite": "580 S.E.2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "23", "parenthetical": "citing State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)" }, { "page": "23" }, { "page": "24", "parenthetical": "stating that \" Miranda warnings are required only when a defendant is subjected to custodial interrogation' \"" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 657", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188383 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "659", "parenthetical": "citing State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)" }, { "page": "659" }, { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0657-01" ] }, { "cite": "361 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735586, 3738213, 3743653, 3744874, 3740619, 3743882, 3746349, 3737044 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0434-05", "/nc/361/0434-04", "/nc/361/0434-08", "/nc/361/0434-07", "/nc/361/0434-06", "/nc/361/0434-01", "/nc/361/0434-02", "/nc/361/0434-03" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "178 N.C. App. 236", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8377141 ], "year": 2006, "pin_cites": [ { "page": "243-44", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0236-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 16, "pin_cites": [ { "page": "(li)" }, { "page": "(5)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)(ii)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" }, { "page": "(la)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1468, "char_count": 45206, "ocr_confidence": 0.738, "pagerank": { "raw": 1.346723080687255e-07, "percentile": 0.6323864827640531 }, "sha256": "caa4860348c1d45f85bde09639c8302583418ce24d1063bbbacb86cbe0151a3f", "simhash": "1:0ba97461f66f47f0", "word_count": 7475 }, "last_updated": "2023-07-14T21:31:50.212435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOSHUA NEWTON CLARK" ], "opinions": [ { "text": "ERVIN, Judge.\nDefendant Joshua Newton Clark appeals from a judgment sentencing him to a minimum term of 156 months and a maximum term of 197 months imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for first degree rape and an order requiring him to enroll in lifetime satellite-based monitoring (SBM) following his release from prison. After careful consideration of Defendant\u2019s challenges to the trial court\u2019s judgment and order in light of the record and the applicable law, we find no basis for providing Defendant with any relief on appeal.\nI. Factual Background\nA. Procedural Facts\nOn 3 May 2006, a warrant for arrest charging Defendant with first degree burglary, first degree rape of a child, and first degree sexual offense against a child was issued. On 5 May 2006, a warrant for arrest charging Defendant with taking indecent liberties with a child was issued. On 5 June 2006, the Burke County grand jury returned bills of indictment charging Defendant with taking indecent liberties with a child and first degree rape.\nOn 11 May 2009, Defendant filed a motion to suppress certain inculpatory statements that he had made to Detective John R. Huffman of the Burke County Sheriff\u2019s Department on 3 May 2006. Defendant sought suppression of these statements on the grounds that they stemmed from a violation of his right to the assistance of counsel and in the absence of a valid waiver of his right to be free from compelled self-incrimination. Defendant\u2019s suppression motion was heard before Judge James E. Hardin, Jr., at the 11 May 2009 session of the Burke County Superior Court. At the conclusion of the hearing, Judge Hardin orally denied Defendant\u2019s suppression motion. On 5 November 2009, Judge Hardin entered a written order that contained extensive findings of fact and conclusions of law denying Defendant\u2019s suppression motion.\nIn light of Judge Hardin\u2019s decision to deny his suppression motion and while reserving his right to \u201cappeal specified rulings of the trial court as specified in the plea proceedings,\u201d Defendant entered an Alford plea to first degree rape at the 26 October 2009 criminal session of the Burke County Superior Court. In return for Defendant\u2019s plea, the State voluntarily dismissed the indecent liberties charge. At the sentencing hearing, the trial court found that Defendant had no prior record points and should be sentenced as a Level I offender, that he had \u201cvoluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer [] at an early stage of the criminal process,\u201d and that \u201cthe factors in mitigation ouweigh[ed] the factors in aggravation,\u201d so that a \u201cmitigated sentence [was] justified.\u201d As a result, the trial court ordered that Defendant be imprisoned for a minimum term of 156 months and a maximum term of 197 months in the custody of the North Carolina Department of Correction.\nAfter the imposition of judgment, the trial court conducted a hearing for the purpose of determining, among other things, whether Defendant should be required to enroll in SBM. At the conclusion of the SBM hearing, the trial court found that Defendant had been convicted of an offense against a minor as defined in N.C. Gen. Stat. \u00a7 14-208.6(li) and a sexually violent offense as defined in N.C. Gen. Stat. \u00a7 14-208.6(5), that the conviction offense was an aggravated offense as defined in N.C. Gen. Stat. \u00a7 14-208.6(la), and that Defendant should be required to enroll in SBM \u201cfor [his] natural life.\u201d Defendant orally noted an appeal to this Court after the entry of the trial court\u2019s judgment. In addition, Defendant has petitioned this Court for the issuance of a writ of certiorari directed to the trial court\u2019s SBM order on 4 June 2010.\nII. Substantive Facts\nA. State\u2019s Evidence at the Suppression Hearing\nAt the suppression hearing, the State presented the testimony of Detective Huffman. Detective Huffman testified that, on 2 May 2006, he received a call reporting that a sexual assault had been committed against a child and responded to the home where the child resided. As Detective Huffman arrived at the child\u2019s residence, Defendant, who was standing in the driveway by himself, inquired if Detective Huffman was the detective responsible for handling the case. After Detective Huffman responded in the affirmative, Defendant stated that he needed to speak with Detective Huffman in order \u201cto make some wrongs right.\u201d Although Detective Huffman told Defendant that he would need to make contact with the child first, he assured Defendant that he would speak with him after that had been done.\nDetective Huffman remained in the child\u2019s house for approximately thirty to forty-five minutes. As Detective Huffman exited the residence, Defendant approached Detective Huffman for a second time and again stated that he needed to speak with Detective Huffman. Detective Huffman \u201cexplained to [Defendant] that [he] was not going to discuss the case ... in the victim\u2019s driveway,\u201d but \u201cwould be more than happy to talk to [Defendant] at the sheriff\u2019s office.\u201d Detective Huffman offered Defendant a ride to the Burke County Sheriff\u2019s Department in his vehicle, an unmarked Crown Victoria. As an alternative, Detective Huffman told Defendant \u201cthat he could call family or friends to get ... a ride.\u201d Defendant elected to ride with Detective Huffman.\nAs the two men traveled to the Sheriff\u2019s Department, Defendant rode in the front seat of Detective Huffman\u2019s vehicle without being subject to any restraints. During this drive, which lasted approximately fifteen to twenty minutes, Detective Huffman and Defendant refrained from discussing the case. Upon arriving at the Sheriff\u2019s Department, Defendant entered the building through the back door and followed Detective Huffman to an interview room.\nAfter the two men reached the interview room, Detective Huffman asked Defendant what \u201cwrongs he needed to make right.\u201d At this time Defendant made the inculpatory statements which underlie his motion to suppress. While interacting with Defendant on 2-3 May 2006, Detective Huffman explicitly informed Defendant that he was not under arrest.\nQ.: Did you tell [Defendant] prior to getting in the car, or while he was in the car that he was not under arrest?\nA.: Yes.\nQ.: Do you recall how many times you told him that?\nA.: Multiple, he stated he understood and he wanted to make wrongs right.\nDetective Huffman was wearing blue jeans and a sweater, had no visible firearm or other weapon in his possession, and did not have a visible police identification badge or handcuffs on his person.\nB. Defendant\u2019s Evidence at the Suppression Hearing\nAt the suppression hearing, Defendant testified that he went to the child\u2019s home at approximately 11:00 p.m. on 2 May 2009. At that time, Defendant noticed a Sheriff\u2019s Department car in the driveway. Defendant pulled into the driveway, exited his vehicle, walked up to the front door, and knocked. The child\u2019s father, who \u201cwas irate,\u201d answered the door. A law enforcement officer approached Defendant and asked Defendant to \u201ccome with him.\u201d Defendant complied with the officer\u2019s request. Defendant further testified that he believed the officer \u201cwas trying to get me away from the scene.\u201d Defendant stood with or around one or more police officers for approximately an hour before Detective Huffman arrived and waited for an additional twenty to thirty minutes while Detective Huffman was inside the child\u2019s residence. At some point during this interval, Defendant attempted to approach the child\u2019s sister, who was his girlfriend, and was instructed to \u201ccome back\u201d by a nearby officer. Defendant testified that \u201cI never felt like I was able to [leave the scene],\u201d that, \u201cI have never really been in trouble,\u201d and that \u201cI am pretty intimidated by the police.\u201d\nIII. Legal Analysis\nA. Motion to Suppress\nOn appeal, Defendant contends that Judge Hardin erred by denying his suppression motion on the grounds that he had not been provided with, and appropriately waived, the necessary Miranda warnings. In challenging the denial of his suppression motion, Defendant argues that Judge Hardin failed to make adequate findings of fact as required by N.C. Gen. Stat. \u00a7 15A-977(d) because he did not resolve the conflict in the evidence arising from Defendant\u2019s testimony that he was moved to a patrol car and ordered to remain there after he attempted to approach the alleged victim\u2019s father and to talk to his girlfriend and that these deficiencies in Judge Hardin\u2019s findings prejudiced him. Defendant\u2019s argument lacks merit.\nIn reviewing a trial court\u2019s order ruling on a motion to suppress, we are \u201c \u2018strictly limited to determining whether the trial [court\u2019s] underlying findings of fact are supported by competent evidence[.]\u2019 \u201d State v. Ortez, 178 N.C. App. 236, 243-44, 631 S.E.2d 188, 194-95 (2006) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)), disc. review denied, 361 N.C. 434, 649 S.E.2d 642 (2007). Assuming that the trial court\u2019s factual findings have adequate evidentiary support, they are conclusive for purposes of appellate review even if the record contains conflicting evidence. State v. Crudup, 157 N.C. App. 657, 659, 580 S.E.2d 21, 23 (2003) (citing State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)). In addition, any findings of fact which the defendant fails to challenge on appeal are binding for purposes of appellate review. State v. Campbell, 188 N.C. App. 701, 704, 656 S.E.2d 721, 724 (citing State v. Lacey, 175 N.C. App. 370, 376, 623 S.E.2d 351, 355 (2006)), app. dismissed, 362 N.C. 364, 664 S.E.2d 311 (2008). \u201c \u2018Once [we] conclude^ that the trial court\u2019s findings of fact are supported by the evidence, [our] next task \u201cis to determine whether the trial court\u2019s conclusion^] of law [are] supported by the findings.\u201d \u2019 \u201d Id. (quoting State v. Brewington, 352 N.C. 489, 498-99, 532 S.E.2d 496, 502 (2000), cert. denied, 531 U.S. 1165, 148 L. Ed. 2d 992, 121 S. Ct. 1126 (2001)). Atrial court\u2019s determinations concerning whether a person is in custody and whether a custodial interrogation has occurred are conclusions of law that are \u201cfully reviewable on appeal.\u201d Buchanan, 353 N.C. at 336, 543 S.E.2d at 826 (citing State v. Greene, 332 N.C. 565, 577, 422 S.E.2d 730, 737 (1992)). \u201c \u2018[T]he trial court\u2019s conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found.\u2019 \u201d Id. (quoting State v. Golphin, 352 N.C. 364, 409, 533 S.E.2d 168, 201 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305, 121 S. Ct. 1379 (2001)). Thus, \u201cwe review the trial court\u2019s determination that [Defendant was not entitled to Miranda warnings under a de novo [standard of] review.\u201d Crudup, 157 N.C. App. at 659, 580 S.E.2d at 23.\nIn his order denying Defendant\u2019s suppression motion, Judge Hardin found as a fact:\n2. That on May 2, 2006 between 11:00-11:30, Detective J.R. Huffman responded to a call for service [at a location in] Morganton, Burke County, North Carolina. Detective Huffman was met by' Sergeant [Robert] Powell of the Burke County Sheriff\u2019s Office briefly describing an alleged sexual assault of [the child] and that [the child] was being taken to Grace Hospital. Detective Huffman encountered the Defendant, whereupon the defendant asked if he (Detective Huffman) was the detective working the case, that he (the Defendant) \u201cneeded to talk to him (Detective Huffman) and make some wrongs, right.\u201d Detective Huffman was at the scene, and inside the residence, for approximately 30-40 minutes. During this time, he had no contact with the Defendant. As Detective Huffman was [exiting] the residence, the Defendant said that he \u201cwanted to talk to the detective.\u201d Detective Huffman indicated he would talk with the defendant at the office, but because he smelled alcohol on the Defendant, he could have a family member or friend bring the Defendant to the office or he (the Defendant) could ride with Detective Huffman, who was in an unmarked car, and who had no badge, gun or handcuffs showing. The Defendant decided to ride with Detective Huffman. The Defendant was not placed in handcuffs and was told specifically that he was not under arrest. While in route to the Sheriff\u2019s Office, the Defendant repeated that \u201c(he) wanted to' make wrongs, right.\u201d\n3. That at around 12:30-1:00 a.m. on May 3, 2006 and upon arrival at the Sheriffs Office, the Defendant was taken to an interview room where he made various oral statements that were later memorialized in writing. At this stage of the investigation of this case, there is no evidence before the Court to suggest or show that a warrant for the Defendant\u2019s arrest had been issued. That at approximately 11:00 p.m. on May 3, 2006, the Defendant voluntarily and \u201con (his) own accord\u201d went to the Burke County Sheriff\u2019s Office. The Defendant was told \u201cthat he (the Defendant) did not have to talk with me (Detective Huffman) [\u201d] and that \u201cyou do not have to be here.\u201d\n4. That the Defendant, according to Detective Huffman, appeared to be relaxed, was not under arrest, was not handcuffed, and was not told that he could not leave. .. .\n5. . . . Following the Defendant\u2019s review of his written statement, the Defendant said \u201c(d)o I need a lawyer?\u201d Detective Huffman responded by saying that he could not give the Defendant legal advice. No[] effort was made to get a lawyer for the Defendant, but there is also no evidence that the Defendant was asked any additional questions. The interview concluded with the departure of Detective Huffman[,] who then stepped outside the interview room to prepare the subject arrest warrants which were to be considered by a Magistrate. While this was going on, the Defendant remained in the interview room, free to move and without handcuffs and with the door open. Once the warrants were completed, the Defendant was presented to the Magistrate.\n6. Prior to the Defendant making oral and written statements to Detective Huffman, the Defendant was not given his Miranda warnings. Up to the point that the Defendant made these statements, no decision as to the Defendant\u2019s arrest on the subject charges had been made. Throughout the time the Defendant made these statements, he remained free to leave, was not placed in handcuffs or any other type of restraint, had not been fingerprinted or asked to submit to any type [of] non-testimonial evidence collection. Only after the Defendant made the oral and written statements was a decision made to charge him with the subject violations.\nBased upon these findings of fact, Judge Hardin concluded as a matter of law, among other things, that \u201cthe requirements of Miranda v. Arizona [were] not applicable to the subject statements of the Defendant because he was not in custody for purposes of the rule in that the Defendant was not under formal arrest and/or did not have his personal movement restrained to a degree associated with formal arrest.\u201d\nA suspect is entitled to receive Miranda warnings in the event that he or she is \u201csubjected to police interrogation while in custody at the station or otherwise deprived of [his or her] freedom of action in any significant way.\u201d Miranda v. Arizona, 384 U.S. 436, 477, 16 L. Ed. 2d 694, 725, 86 S. Ct. 1602, 1629 (1966); see also Crudup, 157 N.C. App. at 659, 580 S.E.2d at 24 (stating that \u201c Miranda warnings are required only when a defendant is subjected to custodial interrogation\u2019 \u201d) (quoting State v. Patterson, 146 N.C. App. 113, 121, 552 S.E.2d 246, 253, disc. review denied, 354 N.C. 578, 559 S.E.2d 549 (2001)). \u201c[P]olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.\u201d Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719, 97 S. Ct. 711, 714 (1977) (per curiam). Instead, \u201c[t]he proper inquiry for determining whether a person is \u2018in custody\u2019 for purposes of Miranda is \u2018based on the totality of the circumstances, whether there was a \u201cformal arrest or restraint on freedom of movement of the degree associated with a formal arrest.\u201d \u2019 \u201d State v. Barden, 356 N.C. 316, 337, 572 S.E.2d 108, 123 (2002) (quoting Buchanan, 353 N.C. at 339, 543 S.E.2d at 828), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074, 123 S. Ct. 2087 (2003). The extent to which Defendant was in custody for Miranda purposes depends on the objective circumstances surrounding his interactions with law enforcement officers, \u201cnot on the subjective views harbored by . . . [Defendant].\u201d Stansbury v. California, 511 U.S. 318, 323, 128 L. Ed. 2d 293, 298, 114 S. Ct. 1526, 1529 (1994) (per curiam). As a result, the ultimate issue before Judge Hardin in the court below and before us on appeal is whether a reasonable person in Defendant\u2019s position would have believed that he was under arrest or was restrained in such a way as to necessitate the provision of Miranda warnings.\nIn State v. Waring, - N.C. - , - , 701 S.E.2d 615, 633 (2010), the Supreme Court highlighted several factors that are appropriately considered in determining whether a particular suspect was in \u201ccustody\u201d for Miranda purposes:\nThis Court has considered such factors as whether a suspect is told he or she is free to leave, whether the suspect is handcuffed, whether the suspect is in the presence of uniformed officers, and the nature of any security around the suspect[.]\n(Internal citations omitted). In Waring, the defendant \u201cwas told he was being detained until detectives arrived but that he was not under arrest. When he was again advised by the detectives upon their arrival that he was not under arrest, defendant voluntarily agreed to accompany them to the police station, affirmatively telling them he was \u2018anxious\u2019 to talk with them and answer their questions.\u201d Id. The Supreme Court reasoned that, although the defendant was initially informed by law enforcement officers that he was being \u201c \u2018detained\u2019 while he waited on the curb for the detectives to arrive,\u201d \u201cany custody associated with the detention ended when defendant left [the detaining officer] and voluntarily accompanied [the detectives]\u201d to the police station. Id. at \u2014, 701 S.E.2d at 634. In holding that a reasonable person in the defendant\u2019s position would not have believed that he was under arrest or subject to such restraint in his movements as to require the administration of Miranda warnings, the Supreme Court emphasized that \u201cany conflict engendered in defendant\u2019s mind by being told at the outset that he was being detained pending the investigators\u2019 arrival necessarily dissipated when those investigators appeared and specifically told defendant he was not under arrest.\u201d Id.\nAt the suppression hearing, Defendant did not testify that he was ever explicitly informed by any law enforcement officer that he had been detained. Instead, Defendant merely claims that the fact that he was moved to a patrol car and instructed to remain there when he came in contact with the child\u2019s father and that he was told to \u201ccome back and stay\u201d at the location of the patrol car when he attempted to talk to his girlfriend, the child\u2019s sister, was tantamount to a formal arrest sufficient to trigger the necessity for the administration of Miranda warnings and that Judge Hardin\u2019s failure to address this issue in his findings of fact constituted an error of law. However, even if Judge Hardin had made factual findings consistent with Defendant\u2019s testimony, such findings would not have established that Defendant was in \u201ccustody\u201d for Miranda purposes. Instead of placing Defendant in detention, the officers\u2019 actions amounted to nothing more than an attempt to control the scene and prevent emotional encounters between a suspect and members of the alleged victim\u2019s family. Moreover, even if Defendant was detained for Miranda purposes while awaiting Detective Huffman\u2019s emergence from the child\u2019s house, Waring establishes that Defendant\u2019s statements to Detective Huffman remain untainted as the result of subsequent events. The testimony of Detective Huffman, upon which Judge Hardin based his findings of fact, demonstrates that Detective Huffman directly and clearly informed Defendant that he was not under arrest, that Defendant repeatedly requested to speak with Detective Huffman, and that Defendant voluntarily accompanied Detective Huffman to the Burke County Sheriffs Department. As a result, even if Judge Hardin erred by failing to make factual findings addressing Defendant\u2019s claim that he was placed in \u201ccustody\u201d while Detective Huffman was inside the alleged victim\u2019s residence, any such error did not prejudice Defendant since the inclusion of findings of fact based on Defendant\u2019s testimony would not have established that his statements to Detective Huffman resulted from an impermissible custodial interrogation. Thus, we must reject Defendant\u2019s sole challenge to the trial court\u2019s judgment.\nB. Satellite-Based Monitoring\n1. Appealability Issues\nSecondly, Defendant challenges the validity of the trial court\u2019s decision requiring him to enroll in lifetime SBM. In evaluating the lawfulness of a trial court order requiring a convicted defendant to enroll in SBM, \u201c \u2018we review the trial court\u2019s findings of fact to determine whether they are supported by competent record evidence, and we review the trial court\u2019s conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found.\u2019 \u201d State v. McCravey, - N.C. App. -, -, 692 S.E.2d 409, 418 (quoting State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009)), disc. review denied, 364 N.C. 438, 702 S.E.2d 506 (2010). Prior to addressing the merits of Defendant\u2019s claim, however, we must first determine if his appeal from the trial court\u2019s SBM order is properly before this Court.\nWe have previously held that, since an SBM-related proceeding is civil rather than criminal in nature, an \u201c \u2018oral notice pursuant to N.C.R. App. P. 4(a)(1) is insufficient to confer jurisdiction on this Court\u2019 in a case arising from a trial court order requiring a litigant to enroll in SBM.\u201d State v. Cowan, - N.C. App. -, -, 700 S.E.2d 239, 241 (2010) (quoting State v. Brooks, \u2014 N.C. App. \u2014, \u2014, 693 S.E.2d 204, 206 (2010)). Instead, a defendant seeking to challenge an order requiring his or her enrollment in SBM must give written notice of appeal in accordance with N.C.R. App. P. 3(a) in order to properly invoke this Court\u2019s jurisdiction. Brooks, - N.C. App. at -, 693 S.E.2d at 206. According to N.C.R. App. P. 3(a), an appealing party must \u201cfile[] [a written] notice of appeal with the clerk of superior court and serve[] copies thereof upon all other parties\u201d as a precondition for challenging such an order on appeal. In view of the fact that Defendant noted his appeal from the trial court\u2019s SBM order orally, rather than in writing, he failed to properly appeal the trial court\u2019s SBM order to this Court, necessitating the dismissal of his appeal. See Cowan, \u2014 N.C. App. at \u2014, 700 S.E.2d at 241 (explaining that a failure to give proper notice of appeal requires dismissal of the appellant\u2019s appeal because \u201c \u2018[t]he provisions of [N.C.R. App. P. 3] are jurisdictional\u2019 \u201d) (quoting Stephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442, 443, disc. review denied, 360 N.C. 544, 635 S.E.2d 58 (2006)).\nIn recognition of his failure to file a written notice of appeal from the trial court\u2019s SBM order, Defendant petitioned for the issuance of a writ of certiorari authorizing appellate review of his SBM-related claims on 3 June 2010. \u201c[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[.]\u201d N.C.R. App. P. 21(a)(1). We conclude that we should, in the exercise of our discretion, issue the requested writ of certiorari in order to permit review of Defendant\u2019s challenge to the trial courts SBM order. Given that this Court did not hold that a written, rather than an oral, notice of appeal was required in order to appeal from an SBM-related order until approximately seven months after Defendant\u2019s SBM hearing, \u201cDefendant would have needed a considerable degree of foresight in order to understand that an oral notice of appeal pursuant to N.C.R. App. P. 4(a)(1) was ineffective\u201d at the time the trial court entered its SBM-related order. Cowan, - N.C. App. at -, 700 S.E.2d at 242. In view of the uncertainty surrounding the proper method of seeking appellate review of trial court SBM orders that existed at the time that Defendant noted his appeal, it would be unfair for us to refuse to consider Defendant\u2019s challenge to the trial court\u2019s SBM order solely because he failed to file a written notice of appeal pursuant to N.C.R. App. P. 3(a). As a result, \u201c [i]n the interest of justice, and to expedite the decision in the public interest,\u201d we grant Defendant\u2019s petition for writ of certiorari for the purpose of considering his challenges to the trial court\u2019s SBM order on their merits. Brooks, \u2014 N.C. App. at \u2014, 693 S.E.2d at 206.\n2. Aggravated Offense\nOn appeal, Defendant contends that the trial court erred by ordering him to enroll in lifetime SBM based on a finding that he had been convicted of an \u201caggravated offense.\u201d More specifically, Defendant contends that he could not properly be required to enroll in lifetime SBM pursuant to N.C. Gen. Stat. \u00a7 14-208.40A(c) because first degree rape of a child in violation of N.C. Gen. Stat. \u00a7 14-27.2(a)(l) is not an \u201caggravated offense\u201d as that term is defined in N.C. Gen. Stat. \u00a7 14-208.6(la).\nN.C. Gen. Stat. \u00a7 14-208.40A(c) provides that a trial court shall require an offender to enroll in lifetime SBM \u201c[i]f the court finds that the offender has been classified as a sexually violent predator, is a recidivist, has committed an aggravated offense, or was convicted of [violating N.C. Gen. Stat. \u00a7 14-27.2A or N.C. Gen. Stat. \u00a7 14-27.4A.]\u201d N.C. Gen. Stat. \u00a7 14-208.6(la) defines an \u201caggravated offense\u201d as \u201cany criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.\u201d In light of the plain language of N.C. Gen. Stat. \u00a7 14-208.6(la), \u201cit 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 [12] years old or (2) the use of force or the threat of serious violence against a victim of any age.\u201d State v. Davison, \u2014 N.C. App. \u2014, \u2014, 689 S.E.2d 510, 515 (2009), disc. review denied, \u2014 N.C. \u2014\u2014, 703 S.E.2d 738 (2010). In Davison, we held that, in determining whether a defendant\u2019s conviction offense qualifies as an \u201caggravated offense\u201d for purposes of N.C. Gen. Stat. \u00a7 14-208.40A, the trial court is only permitted to consider the elements of the offense for which the defendant has been convicted arid \u201cis not to consider the underlying factual scenario giving rise to the conviction.\u201d Id. at \u2014, 689 S.E.2d at 517. As a result, \u201cin order for a trial court to conclude that a conviction offense is an \u2018aggravated offense\u2019 under [N.C. Gen. Stat. \u00a7 14-208.40A,] . . . the elements of the conviction offense must \u2018fit within\u2019 the statutory definition of \u2018aggravated offense.\u2019 \u201d State v. Phillips, - N.C. App. -, -, 691 S.E.2d 104, 106 (citing State v. Singleton, \u2014 N.C. App. \u2014, \u2014, 689 S.E.2d 562, 569, disc. review improvidently allowed, 364 N.C. 418, 700 S.E.2d 226 (2010)), disc. review denied, 364 N.C. 439, 702 S.E.2d 794 (2010). In comparing the statutory definition of an \u201caggravated offense,\u201d as set out in N.C. Gen. Stat. \u00a7 14.208.6(la), with the elements required to be proven to obtain a conviction under N.C. Gen. Stat. \u00a7 14.27.2(a)(1) for first degree rape, it is clear that first degree rape \u201cfit[s] within\u201d the definition of \u201caggravated offense\u201d as required by Davison and its progeny. Id.\nN.C. Gen. Stat. \u00a7 14-27.2(a)(l) provides that:\nA person is guilty of rape in the first degree if the person engages in vaginal intercourse:\n(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim[.]\nUnlike the various conviction offenses at issue in the cases upon which Defendant relies, Davison, - N.C. App. at -, 689 S.E.2d at 516 (taking indecent liberties with a child); Singleton, - N.C. App. at -, 689 S.E.2d at 566-67 (taking indecent liberties with a child); Phillips, - N.C. App. at -, 691 S.E.2d at 107 (felonious child abuse by means of the commission of any sex act); Brooks, - N.C. App. at -, 693 S.E.2d at 207 (sexual battery), as well as other cases recently decided by this Court, State v. Treadway, - N.C. App. -, -,702 S.E.2d 335, 347 (2010) (first degree sexual offense), State v. Santos, - N.C. App. -, -, -S.E.2d -, -, 2011 N.C. App. LEXIS 459, at *9-*14 (2011) (first degree sexual offense), obtaining a first degree rape conviction pursuant to N.C. Gen. Stat. \u00a7 14-27.2(a)(l) requires proof that a defendant \u201cengage[d] in vaginal intercourse\u201d with his or her victim, as compared to some other form of inappropriate contact. N.C. Gen. Stat. \u00a7 14-27.2(a)(l). In other words, anyone found guilty of first degree rape in violation of N.C. Gen. Stat. \u00a7 14-27.2(a)(l) has necessarily \u201c[engaged] in a sexual act involving vaginal, anal, or oral penetration,\u201d N.C. Gen. Stat. \u00a7 14-208.6(la), based solely on an analysis of the elements of the conviction offense.\nThe fact that a defendant has been convicted of first degree rape under N.C. Gen. Stat. \u00a7 14-27.2(a)(l) does not, however, support an inference that the victim was under the age of 12 as required by N.C. Gen. Stat. \u00a7 14-208.6(la)(ii), since one commits first degree rape whenever he or she engages in vaginal intercourse with \u201ca child under the age of 13.\u201d N.C. Gen. Stat. \u00a7 14-27.2(a)(l). Thus, as Defendant correctly points out, a trial court cannot determine whether the victim of a first degree rape in violation of N.C. Gen. Stat. \u00a7 14-27.2(a)(l) was under the age of 12 without engaging in an impermissible consideration of the underlying factual scenario giving rise to the conviction offense. See Phillips, \u2014 N.C. App. at \u2014, 691 S.E.2d at 108 (stating that, \u201c[s]ince \u2018a child less than 16 years\u2019 is not necessarily also \u2018less than 12 years old,\u2019 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\u201d); Treadway, - N.C. App. at -, 702 S.E.2d at 33-34 (holding that the record did not support a finding that a defendant convicted of first degree sexual offense in violation of N.C. Gen. Stat. \u00a7 14-27.4(a)(l) had committed an \u201caggravated offense,\u201d because a conviction for first degree sexual offense only requires that the victim be under the age of 13, guilt of \u201c[a]n aggravated offense requires that the child be \u2018less than 12 years old,\u2019 \u201d and \u201ca child under the age of 13 is not necessarily also a child less than 12 years old\u201d) (internal citations omitted); Santos, \u2014 N.C. App. at \u2014, \u2014 S.E.2d \u2014, 2011 N.C. App. LEXIS 459, at *12-*13 (2011) (citing Treadway for the proposition that first degree sexual offense is not an \u201caggravated offense\u201d). In sum, the trial court\u2019s determination that Defendant was subject to lifetime SBM based on his conviction for an \u201caggravated offense\u201d cannot be upheld on the basis of the \u201cchild victim\u201d prong of the statutory definition set out in N.C. Gen. Stat. \u00a7 14-208.6(la).\nAs we previously noted, however, one commits an \u201caggravated offense\u201d if he or she (1) engages in a sexual act involving vaginal, anal, or oral penetration, with either (2a) a victim less than 12 years old or, (2b) a victim of any age through the use of force or the threat of serious violence. N.C. Gen. Stat. \u00a7 14-208.6(la). Based only on the fact that Defendant was convicted of first degree rape in violation of N.C. Gen. Stat. \u00a7 14-27.4(a)(l) and without making any reference to the factual scenario giving rise to Defendant\u2019s rape conviction, it is clear from the mere fact of his conviction that Defendant engaged in vaginal intercourse with the victim. In addition, because we believe that the act of vaginal intercourse with a person under the age of 13 necessarily involves the use of force or the threat of serious violence, we find that first degree rape \u201cfit[s] within\u201d the definition of \u201caggravated offense\u201d as is required by Davison and its progeny.\nIn State v. Oxendine, - N.C. App. -, 696 S.E.2d 850 (2010), this Court accepted the State\u2019s argument that \u201cdefendant should . . . 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. Gen. Stat.] \u00a7 14-208.6(la)\u201d and \u201cremand[ed] this matter to the trial court to enter an appropriate order in light of [State v. McCravey, \u2014 N.C. App. \u2014, 692 S.E.2d 409 (2010)].\u201d Oxendine, \u2014N.C. App. at -, 696 S.E.2d at 853, 853-55. As the Supreme Court has noted, \u201crape is a felony which has as an element the use or threat of violence[.]\u201d State v. Holden, 338 N.C. 394, 404, 450 S.E.2d 878, 883-84 (1994) (citations omitted). In reaching this conclusion, the Supreme Court explicitly \u201crejected] the notion\u201d of \u201c \u2018non-violent rape\u2019 \u201d and endorsed the \u201cmore enlightened view . . . expressed in the opinions of military courts which have been cited with approval by this Court.\u201d Id. at 405, 450 S.E.2d at 884.\nUnder 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 \u201cspecifically 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.\u201d Myers, 22 M.J. at 650. \u201cAmong common misconceptions about rape is that it is a sexual act rather than a crime of violence.\u201d United States v. Hammond, 17 M.J. 218, 220 n.3 (C.M.A. 1984).\nId. (quoting State v. Green, 336 N.C. 142, 169, 443 S.E.2d 14, 30, cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547, 115 S. Ct. 642 (1994)). Thus, \u201c[t]he act[] of having .. . 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-involve[s] the \u2018use or threat of violence.\u2019 \u201d Id. at 406, 450 S.E.2d at 884. Put another way, an act of sexual intercourse with a person deemed incapable of consenting as a matter of law is a violent act. Id. As a result, since a child under the age of 13 is inherently incapable of consenting to sexual intercourse, the rape of such a victim necessarily involves \u201cthe use of force or the threat of serious violence[.]\u201d N.C. Gen. Stat. \u00a7 14-208.6(la).\nThus, based on an examination of the elements of the offense of first degree rape as defined in N.C. Gen. Stat. \u00a7 14-27.2(a)(l), the trial court had ample basis for determining that Defendant committed an act involving vaginal penetration. Additionally, in light of Holden, it is clear that, without considering the facts of the underlying event giving rise to Defendant\u2019s conviction, the trial court had ample basis for concluding that Defendant engaged in \u201ca sexual act involving . . . the use of force or the threat of serious violence[.]\u201d N.C. Gen. Stat. \u00a7 14-208.6(la). Since neither Treadway nor Santos addressed the extent to which the defendant was subject to lifetime SBM on the basis of the \u201cviolent conduct\u201d prong of N.C. Gen. Stat. \u00a7 14-208.6(la), and since guilt of first degree sexual offense in violation of N.C. Gen. Stat. \u00a7 14-27.4(a)(l) does not require proof of an act of \u201cvaginal, anal, or oral penetration,\u201d N.C. Gen. Stat. \u00a7 14-208.6(la), those decisions do not control the outcome in this case. Instead, our decision with respect to this issue is controlled by Oxendine, in which we held that a defendant convicted of any rape was subject to lifetime SBM on the basis of the \u201cviolent conduct\u201d prong of N.C. Gen. Stat. \u00a7 14-208.6(la). Since-the essential elements of first degree rape in violation of N.C. Gen. Stat. \u00a7 14-27.2(a)(l) \u201cfit within\u201d the statutory definition of an \u201caggravated offense\u201d set out in N.C. Gen. Stat. \u00a7 14-208.6(la), we hold that the trial court did not err by ordering Defendant to enroll in SBM for the remainder of his natural life pursuant to N.C. Gen. Stat. \u00a7 14-208.40A.\n3. Ineffective Assistance of Counsel\nFinally, Defendant contends that he was denied the effective assistance of counsel in violation of the United States Constitution and the North Carolina Constitution. U.S. Const, amend. VI; N.C. Const, art. I, \u00a7 23. More specifically, Defendant contends that he received deficient representation because his trial counsel failed to challenge the trial court\u2019s SBM order on the grounds that it violated the federal and state constitutional prohibitions against the enactment of ex post facto laws. U.S. Const, art. I, \u00a7 10, cl. 1; N.C. Const, art. I, \u00a7 16. Defendant is not entitled to relief on appeal based upon this contention.\nWe first note that this ineffective assistance claim is simply not available to Defendant. \u201c[I-Jneffective assistance of counsel [claims are] available only in criminal matters.\u201d State v. Wagoner, - N.C. App. -, -, 683 S.E.2d 391, 400 (2009), aff'd 364 N.C. 422, 700 S.E.2d 222 (2010). The SBM statutes constitute a civil, regulatory regime, rather than a criminal punishment. State v. Bowditch, 364 N.C. 335, 352, 700 S.E.2d 1, 13 (2010) (stating that \u201c[t]he SBM program ... was enacted with the intent to create a civil, regulatory scheme to protect citizens of our state from the threat posed by the recidivist tendencies of convicted sex offenders\u201d and \u201cneither the purpose nor effect of the SBM program negates the legislature\u2019s civil intent[,]\u201d so that \u201csubjecting defendants to the SBM program does not violate the Ex Post Facto Clauses of the state or federal constitution\u201d). As a result, since an SBM proceeding is not criminal in nature, defendants required to enroll in SBM are not entitled to challenge the effectiveness of the representation that they received from their trial counsel based on the right to counsel provisions of the federal and state constitutions. Wagoner, - N.C. App. at -, 683 S.E.2d at 400.\nMoreover, even if Defendant were entitled to raise an ineffectiveness claim, that claim would not be successful. A successful ineffective assistance of counsel claim requires a demonstration that the representation that the defendant received \u201cfell below an objective standard of reasonableness\u201d and that the \u201cdeficiencies in counsel\u2019s performance [were] prejudicial[.]\u201d Strickland v. Washington, 466 U.S. 668, 688, 692, 80 L. Ed. 2d 674, 693, 696, 104 S. Ct. 2052, 2064, 2067 (1984). In other words, a mere demonstration that a defendant\u2019s trial counsel provided deficient representation is insufficient to support an award of relief. Id. at 693, 80 L. Ed. 2d at 697, 104 S. Ct. at 2067. Instead, Defendant must also show that there is a \u201creasonable probability\u201d that, had his trial counsel challenged the trial court\u2019s SBM order on ex post facto grounds, \u201cthe result of the proceeding would have been different.\u201d Id. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. In light of the Supreme Court\u2019s recent Bowditch decision, it is clear that any ex post facto challenge that Defendant might have advanced in opposition to the trial court\u2019s SBM order would not have been successful. Thus, for all of these reasons, Defendant\u2019s ineffective assistance of counsel claim lacks merit.\nIV. Conclusion\nThus, for the reasons set forth above, we conclude that Judge Hardin did not err by denying Defendant\u2019s suppression motion and that the trial court did not err by ordering Defendant to enroll in SBM for the remainder of his natural life. As a result, the trial court\u2019s judgment and the SBM order should not, and will not be, disturbed on appeal.\nNO ERROR.\nJudges BRYANT and STEELMAN concur.\n. Although Judge Hardin\u2019s order was dated 25 July 2009, it was not filed until 5 November 2009.\n. The State also dismissed the first degree sexual offense and first degree burglary charges that had been originally asserted against Defendant on 8 June 2006, with this dismissal predicated on the fact that the grand jury had indicted Defendant for taking indecent liberties with a child and first degree rape of a child.\n. The material set out in parenthesis in our quotation from Judge Hardin\u2019s findings of fact was set out in brackets in the original order. The material set out in brackets in our quotation from Judge Hardin\u2019s factual findings represents certain minor modifications that we have made to the quoted findings of fact for the purpose of consistency with the remainder of our opinion, the protection of the child\u2019s privacy, or for similar reasons.\n. The same is not necessarily true with respect to a conviction for first degree sexual offense in violation of N.C. Gen. Stat. \u00a7 14-27.4(a)(l), since an individual can be convicted of first degree sexual offense on the basis of cunnilingus, which does not require proof of penetration. State v. Ludlum, 303 N.C. 666, 669, 281 S.E.2d 159, 161 (1981) (stating that \u201c[w]e do not agree, however, that penetration is required before cunninlingus, as that word is used in the statute, can occur\u201d).\n. The logic adopted in our opinion with respect to this issue is essentially the same as that advocated by Judge Stroud in her concurring opinion in Oxendine.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOSHUA NEWTON CLARK\nNo. COA10-403\n(Filed 19 April 2011)\n1. Confessions and Incriminating Statements\u2014 statements to detective \u2014 voluntary\nThe trial court did not err by denying a first-degree rape defendant\u2019s motion to suppress statements he made to a detective before he was given Miranda warnings. Although defendant was told to wait at a patrol car at the scene, this amounted only to an attempt by officers to control the scene and prevent emotional encounters between a suspect and the victim\u2019s family. The detective who took the statements directly and clearly informed defendant that he was not under arrest, defendant repeatedly asked to speak with the detective, and defendant voluntarily accompanied the detective to the sheriff\u2019s department.\n2. Appeal and Error\u2014 notice of appeal \u2014 satellite-based monitoring \u2014 written notice required\nAn oral notice of appeal was not sufficient to confer appellate jurisdiction to review a satellite-based monitoring (SBM) order because SBM is civil rather than criminal in nature. Although defendant noted his- appeal orally rather than in writing, his motion for certiorari was granted because of the uncertainty about the proper method of appealing SBM orders at the time.\n3. Satellite-Based Monitoring\u2014 aggravated offense \u2014 first-degree rape of child under thirteen\nThe trial court did not err by ordering defendant to enroll in satellite-based monitoring for the rest of his natural life after he was convicted of the first-degree rape of a child. Although the trial court\u2019s determination of an aggravated offense could not be upheld based on the \u201cchild victim\u201d prong of N.C.G.S. \u00a7 14-208.6(la) and the underlying factual scenario could not be considered, the elements of first-degree rape as defined in N.C.G.S. \u00a7 14-27.2(a)(l) gave the trial court ample basis for determining that defendant committed an act involving vaginal penetration. Since a child under the age of thirteen is inherently incapable of consenting to sexual intercourse, the rape of such a victim necessarily involves the use of force or the threat of serious violence and the definition of aggravated offense was satisfied by the \u201cviolent conduct\u201d prong of N.C.G.S. \u00a7 14-208.6(la).\n4. Constitutional Law\u2014 ex post facto \u2014 ineffective assistance of counsel \u2014 not available for satellite-based monitoring claims\nIneffective assistance of counsel claims are not available to satellite-based monitoring (SBM) defendants because SBM is civil in nature. Moreover, any ex post facto claim defendant\u2019s lawyer might have raised would not have been successful for the same reason.\nAppeal by Defendant from judgment entered 29 October 2009 by Judge F. Donald Bridges in Burke County Superior Court. Heard in the Court of Appeals 29 September 2010.\nAttorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant." }, "file_name": "0060-01", "first_page_order": 68, "last_page_order": 85 }