{ "id": 3806369, "name": "STATE OF NORTH CAROLINA v. DEREK RILE GREEN", "name_abbreviation": "State v. Green", "decision_date": "2011-05-03", "docket_number": "No. COA10-1163", "first_page": "599", "last_page": "605", "citations": [ { "type": "official", "cite": "211 N.C. App. 599" } ], "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": "700 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152728 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0335-01" ] }, { "cite": "536 U.S. 24", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254852 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "33" }, { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/us/536/0024-01" ] }, { "cite": "406 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "855", "parenthetical": "\"We have held that a statement by the prosecuting attorney is not sufficient standing alone to find an aggravating factor. If opposing counsel stipulates to a statement it may be used to support the finding of an aggravating factor.\" (internal citations omitted)" } ], "opinion_index": 0 }, { "cite": "329 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554860 ], "year": 1991, "pin_cites": [ { "page": "685", "parenthetical": "\"We have held that a statement by the prosecuting attorney is not sufficient standing alone to find an aggravating factor. If opposing counsel stipulates to a statement it may be used to support the finding of an aggravating factor.\" (internal citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0683-01" ] }, { "cite": "342 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697700 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0523-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-179", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "118 S.E.2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "254 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625597 ], "year": 1961, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0231-01" ] }, { "cite": "703 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "689 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "517" } ], "opinion_index": 0 }, { "cite": "700 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152446 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0424-01" ] }, { "cite": "683 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2009, "pin_cites": [ { "page": "760-62" }, { "page": "760-61" }, { "page": "761-62", "parenthetical": "approving of a trial court's consideration of findings made in a probation revocation proceeding preceding the SBM hearing" } ], "opinion_index": 0 }, { "cite": "148 L. Ed. 2d 992", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "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": "532 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "501" } ], "opinion_index": 0 }, { "cite": "352 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685022 ], "year": 2000, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0489-01" ] }, { "cite": "679 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2009, "pin_cites": [ { "page": "432", "parenthetical": "citation and internal quotation marks omitted" }, { "page": "432" }, { "page": "434" }, { "page": "432" }, { "page": "432", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4169223 ], "weight": 4, "year": 2009, "pin_cites": [ { "page": "367", "parenthetical": "citation and internal quotation marks omitted" }, { "page": "369-70" }, { "page": "367" }, { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0363-01" ] }, { "cite": "702 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 436", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "677 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "527" }, { "page": "527" } ], "opinion_index": 0 }, { "cite": "693 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "206", "parenthetical": "quoting State v. Bare, - N.C. App. - , -, 677 S.E.2d 518, 527 (2009), disc. review denied, 364 N.C. 436, 702 S.E.2d 492 (2010)" }, { "page": "206", "parenthetical": "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 pursuant to N.C. R. App. P 3(a)" } ], "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 } ], "analysis": { "cardinality": 676, "char_count": 16615, "ocr_confidence": 0.733, "pagerank": { "raw": 1.2761879110320007e-07, "percentile": 0.6159054060680758 }, "sha256": "445cb5719c6cf6f20887a9447ca3c5199bc80a18a43afb6e4caad3af64a888ce", "simhash": "1:0babc66a5f2d0cf0", "word_count": 2655 }, "last_updated": "2023-07-14T21:31:50.212435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, ROBERT C., and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DEREK RILE GREEN" ], "opinions": [ { "text": "STEPHENS, Judge.\nFactual and Procedural Background\nOn 9 January 2007, Derek Rile Green (\u201cGreen\u201d) was indicted on one count of first-degree forcible sexual offense. Prior to trial, the State filed an information with the Chatham County Superior Court charging Green with indecent liberties with a minor.\nPursuant to a plea agreement, Green pled guilty at the 24 April 2008 Criminal Session of Chatham County Superior Court, the Honorable R. Allen Baddour, Jr., presiding, to two counts of taking indecent liberties with a minor in exchange for the State\u2019s agreement to drop several other pending charges. As recommended in Green\u2019s plea agreement, the trial court sentenced Green to 25 to 30 months in the custody of the Department of Correction (\u201cDOC\u201d) and further recommended that Green complete the \u201cSOAR\u201d program. At the conclusion of sentencing, the trial court conducted a hearing pursuant to N.C. Gen. Stat. \u00a7 14-208.40A to determine Green\u2019s eligibility for enrollment in a satellite-based monitoring (\u201cSBM\u201d) program. The hearing was continued for 21 months to allow the parties to gather further evidence.\nOn 13 October 2009, a DOC risk assessment of Green was completed by psychologist Richard Daves. The risk assessment placed Green in the \u201cmoderate-low\u201d risk range.\nThe SBM hearing was completed on 11 February 2010, Judge Baddour again presiding. Following that hearing, the trial court entered its \u201cjudicial findings and order for sex offenders,\u201d in which the court (1) found that Green was convicted of an offense involving the physical, mental, or sexual abuse of a minor, (2) found that Green requires the highest possible level of supervision and monitoring, and (3) ordered that, upon his release from prison, Green be enrolled in SBM for a period of five years pursuant to N.C. Gen. Stat. \u00a7 14-208.40A(e). From the SBM order, Green appeals.\nGrounds for Appellate Review\nAt the 11 February 2010 SBM hearing, Green gave oral notice of appeal from the order. However, this Court has held that \u201cSBM hearings and proceedings are not criminal actions, but are instead a \u2018civil regulatory scheme.\u2019 \u201d State v. Brooks, - N.C. App. -, \u2014, 693 S.E.2d 204, 206 (2010) (quoting State v. Bare, - N.C. App. \u2014 , \u2014, 677 S.E.2d 518, 527 (2009), disc. review denied, 364 N.C. 436, 702 S.E.2d 492 (2010)). Accordingly, Green\u2019s oral notice of appeal is insufficient to confer jurisdiction on this Court. See Brooks, \u2014 N.C. App. at \u2014, 693 S.E.2d at 206 (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 pursuant to N.C. R. App. P 3(a)).\nHowever, on 4 November 2010, Green filed with this Court a petition for writ of certiorari. According to Green, \u201cthe law on this issue, was in its early stages of interpretation\u201d at the time Green entered oral notice of appeal. Although SBM proceedings were considered part of a \u201ccivil regulatory scheme\u201d at the time of Green\u2019s appeal, Bare, \u2014 N.C. App. at \u2014, 677 S.E.2d at 527, such that written notice of appeal was required at the time, in the interest of justice we elect to grant Green\u2019s petition for writ of certiorari and address the merits of his appeal pursuant to N.C. R. App. P. 21.\nDiscussion\nOn appeal from an SBM order, \u201cwe 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.\u201d State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009) (citation and internal quotation marks omitted). \u201cThe trial court\u2019s \u2018findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.\u2019 \u201d Id. at 366, 679 S.E.2d at 432 (2009) (quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001)).\nGreen argues on appeal that the order enrolling Green in the SBM program for a period of five years should be vacated because its conclusion that Green required the highest possible level of supervision was erroneous. This Court has previously held that a DOC risk assessment of \u201cmoderate,\u201d without more, is insufficient to support the finding that a defendant requires the highest possible level of supervision and monitoring. Kilby, 198 N.C. App. at 369-70, 679 S.E.2d at 434. However, in the face of a DOC risk assessment of \u201cmoderate,\u201d a trial court\u2019s determination that the d\u00e9fendant requires the highest possible level of supervision may be adequately supported where the trial court makes \u201cadditional findings\u201d regarding the need for the highest possible level of supervision and where there is competent record evidence to support those additional findings. See State v. Morrow, - N.C. App. \u2014, \u2014, 683 S.E.2d 754, 760-62 (2009), aff'd per curiam, 364 N.C. 424, 700 S.E.2d 224 (2010). In this case, the trial court found that Green requires the highest possible level of supervision and monitoring based on the DOC risk assessment of \u201cmoderate-low\u201d and based on the following additional findings: (1) the victims were especially young, neither victim was able to advocate for herself, \u201cone victim was too young to possibly even speak,\u201d and therefore \u201cthe risk to other similarly situated individuals is [] substantial;\u201d (2) Green has \u201ccommitted multiple [acts] of domestic violence;\u201d and (3) Green has obtained no sex offender treatment. On appeal, Green contends that these additional findings were erroneous and/or unsupported by competent evidence and, therefore, the court\u2019s determination that Green requires the highest possible level of supervision is not supported by adequate additional findings.\nRegarding additional finding one, Green argues that this finding is erroneous because it is based on the underlying factual scenario of his conviction. Green contends that the \u201cfacts inherent in the crime to which [he] submitted an Alford plea\u201d could not have properly been considered by the trial court and that such facts \u201cwere insufficient, and otherwise not additional considerations by the court . . . that otherwise supplemented or should out[]weigh the [DOC risk assessment] of moderate-low risk.\u201d We are unpersuaded by this argument.\nInitially, we note that Green presents no legal authority to support his argument that the \u201cfacts inherent in the crime\u201d may not be considered as additional factors in the trial court\u2019s determination as to whether a defendant requires the highest possible level of supervision. Furthermore, although this Court has held that the factual context of the crime may not be considered in determining whether a defendant\u2019s offense of conviction was an \u201caggravated offense\u201d or an offense involving the physical, mental, or sexual abuse of a minor, State v. Davison, \u2014 N.C. App. -, -, 689 S.E.2d 510, 517 (2009), disc. review denied, \u2014 N.C. -, 703 S.E.2d 738 (2010), the reasoning supporting that holding is inapplicable in this context. In Davison, this Court held that use of the word \u201cconviction\u201d in section 14-208.40A compels the conclusion that only the conviction itself, and not the underlying factual context of the conviction, may be considered in determining whether the defendant was convicted of an aggravated offense or an offense involving the physical, mental, or sexual abuse of a minor.. Id However, section 14-208.40A(e), which governs the present inquiry, contains no similar limitation on what may properly be considered by the trial court in determining whether the defendant requires the highest possible level of supervision:\nUpon receipt of a risk assessment from [DOC] .. ., the court shall determine whether, based on [DOC\u2019s] risk assessment, the offender requires the highest possible level of supervision and monitoring. If the court determines that the offender does require the highest possible level of supervision and monitoring, the court shall order the offender to enroll in [an SBM] program for a period of time to be specified by the court.\nN.C. Gen. Stat. \u00a7 14-208.40A(e) (2009). Indeed, section 14- 208.40A(e) mandates that the trial court must look beyond the offense of conviction and consider the DOC risk assessment in making its determination. Id. Further, this Court has since held that when the trial court is making its determination of whether the defendant requires the highest possible level of supervision, the court \u201cis not limited to the DOC\u2019s risk assessment\u201d and should consider \u201cany proffered and otherwise admissible evidence relevant to the risk posed by a defendant[.]\u201d Morrow, - N.C. App. at -, 683 S.E.2d at 760-61. Based on the foregoing, we find nothing to support Green\u2019s contention and, thus, we conclude that the trial court may properly consider evidence of the factual context of a defendant\u2019s conviction when making additional findings as to the level of supervision required of a defendant convicted of an offense involving the physical, mental, or sexual abuse of a minor. Accordingly, we hold that it was not error for the trial court to consider the factual context of Green\u2019s conviction in making its additional findings. Nevertheless, before we can make any determination as to whether the trial court properly concluded that Green requires the highest possible level of supervision, we must first determine whether additional finding one was supported by competent evidence. Kilby, 198 N.C. App. at 367, 679 S.E.2d at 432.\nPrior to the initiation of the SBM hearing, the trial court engaged in a plea colloquy with Green, in which Green stipulated to the prosecutor\u2019s summary of the facts. In that summary, the prosecutor stated that at the time of the offense, one victim was 17 months old and the other was four years old. As Green stipulated to the facts as summarized by the prosecutor and failed even to attempt to dispute in any way the age of the victims, we conclude that this evidence sufficiently supported additional finding one. Cf. State v. Powell, 254 N.C. 231, 234, 118 S.E.2d 617, 619 (1961) (\u201cNo proof of stipulated or admitted facts, or of matters necessarily implied thereby, is necessary, the stipulations being substituted for proof and dispensing with evidence. While a stipulation need not follow any particular form, its terms must be definite and certain in order to afford a basis for judicial decision, and it is essential that they be assented to by the parties or those representing them. Silence, under some circumstances, may be deemed assent. These principles apply in both civil and criminal ' cases.\u201d (internal quotation marks, citations, and ellipses omitted)), superseded on other grounds by statute, N.C. Gen. Stat. \u00a7 20-179(a) (2009) (as recognized in State v. Denning, 316 N.C. 523, 342 S.E.2d 855 (1986)); Morrow, \u2014 N.C. App. at -, 683 S.E.2d at 761-62 (approving of a trial court\u2019s consideration of findings made in a probation revocation proceeding preceding the SBM hearing).\nRegarding additional finding two, which states that Green has committed multiple acts of domestic violence, Green argues that this finding is erroneous as there is no competent evidence supporting it. We agree. The only indications of Green\u2019s alleged commission of acts of domestic violence were (1) the State\u2019s representation to the trial court that Green pled guilty to \u201can assault charge involving the mother of the victim in this case,\u201d which charge was reduced to a misdemeanor because the mother \u201cwanted that case dismissed;\u201d and (2) the list of prior convictions on his \u201cPrior Record Level\u201d worksheet, which contains the following entry: \u201cAWDWIKI G/L AWDW AND CT[.]\u201d Because the shorthand for Green\u2019s prior conviction does not convey that the charge involved domestic abuse, and because the State\u2019s statement about the domestic violence aspect of the charge was neither stipulated to nor assented to by Green, we conclude that this \u201cevidence\u201d is insufficient to support the trial court\u2019s finding that Green \u201ccommitted multiple [acts] of domestic violence.\u201d Cf. State v. Mullican, 329 N.C. 683, 685, 406 S.E.2d 854, 855 (1991) (\u201cWe have held that a statement by the prosecuting attorney is not sufficient standing alone to find an aggravating factor. If opposing counsel stipulates to a statement it may be used to support the finding of an aggravating factor.\u201d (internal citations omitted)).\nRegarding additional finding three \u2014 that Green \u201chas obtained no sex offender treatment\u201d \u2014 Green argues that this finding is unsupported by the evidence. We disagree. At the SBM proceeding, Green admitted that he had not completed the recommended treatment. Accordingly, we conclude that additional finding three is supported by competent evidence.\nAs we have concluded that additional findings of fact one and three are supported by competent evidence, we must next determine whether these findings, along with the \u201cmoderate-low\u201d risk assessment, support the trial court\u2019s determination that Green \u201crequires the highest possible level of supervision and monitoring.\u201d We review this determination by the trial court to ensure that it \u201creflects] a correct application of law to the facts found.\u201d Kilby, 198 N.C. App. at 367, 679 S.E.2d at 432 (internal quotation marks omitted) (brackets in original).\nIn our view, the trial court\u2019s determination that Green requires the highest possible level of supervision based on the facts that the victims were very young and that Green did not receive any sex offender treatment is a correct application of the law to the facts found. As section 15A-1340.16(d) provides that the very young age of the victim is an appropriate aggravating factor for sentencing purposes, we see no reason why that fact would not also be a similarly \u201caggravating\u201d finding in the SBM context. See N.C. Gen. Stat. \u00a7 15A-1340.16(d)(ll) (2009). Further, this Court has previously held that evidence that a defendant failed to attend several sessions of a sexual abuse treatment program required as a condition of his probation could support a finding that the defendant requires the highest possible level of supervision. Morrow, - N.C. App. at -, 683 S.E.2d at 761 (citing McKune v. Lile, 536 U.S. 24, 33, 153 L. Ed. 2d 47, 57 (2002), for the proposition that \u201can untreated sex offender is significantly more likely to reoffend than if treated\u201d). While we acknowledge that, in this case, the sex offender treatment program was only recommended, not required, for Green, we note that the fact of recommendation rather than requirement does not discount the fact that \u201can untreated sex offender is significantly more likely to reoffend than if treated.\u201d See id. Accordingly, we conclude that the trial court\u2019s additional findings that Green had not received treatment and that the victims were very young were proper findings to support the trial court\u2019s determination that Green requires the highest possible level of supervision.\nBased on the foregoing, we conclude that the trial court did not err by enrolling Green in the SBM program for a period of five years. The order of the trial court is\nAFFIRMED.\nJudges HUNTER, ROBERT C., and ERVIN concur.\n. \u201cSOAR\u201d is an acronym standing for Sex Offender Accountability and Responsibility.\n. The purpose of such an assessment is to estimate the probability of sexual and violent recidivism.\n. As for Green\u2019s remaining argument that enrollment in SBM violates his many constitutional protections, such argument is unavailing in light of our Supreme Court\u2019s decision in State v. Bowditch, 364 N.C. 335, 700 S.E.2d 1 (2010).", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Oliver G. Wheeler IV, for the State.", "Greene & Wilson, RA., by Thomas Reston Wilson, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DEREK RILE GREEN\nNo. COA10-1163\n(Filed 3 May 2011)\nSatellite-based Monitoring\u2014 highest level of supervision\u2014 sufficiency of additional findings\nThe Court of Appeals granted defendant\u2019s petition for writ of certiorari under N.C. R. App. P. 21 and concluded that the trial court did not err by enrolling defendant in the satellite-based program for a period of five years. The trial court\u2019s additional findings that defendant had not received treatment and that the victims were very young were proper findings to support the trial court\u2019s determination that defendant required the highest possible level of supervision.\nAppeal by Defendant from order dated 11 February 2010 by Judge R. Allen Baddour, Jr., in Chatham County Superior Court. Heard in the Court of Appeals 22 March 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Oliver G. Wheeler IV, for the State.\nGreene & Wilson, RA., by Thomas Reston Wilson, for Defendant." }, "file_name": "0599-01", "first_page_order": 607, "last_page_order": 613 }