{ "id": 4342812, "name": "STATE OF NORTH CAROLINA v. ROBBIE ZEB STOKES", "name_abbreviation": "State v. Stokes", "decision_date": "2011-11-01", "docket_number": "No. COA11-373", "first_page": "529", "last_page": "540", "citations": [ { "type": "official", "cite": "216 N.C. App. 529" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "683 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "263-64", "parenthetical": "\"N.C. Gen. Stat. \u00a7 14-208.40A(d" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4171805 ], "year": 2009, "pin_cites": [ { "page": "115", "parenthetical": "\"N.C. Gen. Stat. \u00a7 14-208.40A(d" } ], "opinion_index": 0, "case_paths": [ "/nc-app/200/0113-01" ] }, { "cite": "679 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "opinion_index": 0 }, { "cite": "198 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4169223 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/nc-app/198/0363-01" ] }, { "cite": "702 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "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", "year": 2009, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "197 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4167386 ], "year": 2009, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc-app/197/0461-01" ] }, { "cite": "693 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "206", "parenthetical": "holding oral notice pursuant to N.C.R. App. P 4(a)(1) insufficient to confer jurisdiction on this Court because SBM hearings involve a civil \" 'regulatory scheme' \" (quoting State v. Bare, 197 N.C. App. 461, 472, 677 S.E.2d 518, 527 (2009" } ], "opinion_index": 0 }, { "cite": "674 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "817", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166753 ], "year": 2009, "pin_cites": [ { "page": "400", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0394-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "citation, quotation marks, ellipses, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "citation, quotation marks, ellipses, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "713 S.E.2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "117", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "147 L. Ed. 2d 965", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "530 U.S. 1245", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9433473, 9433442, 9433509, 9433349, 9433253, 9433290, 9433227, 9433548, 9433389, 9433330, 9433365, 9433273, 9433307, 9433407 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/530/1245-12", "/us/530/1245-11", "/us/530/1245-13", "/us/530/1245-07", "/us/530/1245-02", "/us/530/1245-04", "/us/530/1245-01", "/us/530/1245-14", "/us/530/1245-09", "/us/530/1245-06", "/us/530/1245-08", "/us/530/1245-03", "/us/530/1245-05", "/us/530/1245-10" ] }, { "cite": "520 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "553" } ], "opinion_index": 0 }, { "cite": "351 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155790 ], "year": 1999, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0048-01" ] }, { "cite": "691 S.E.2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "746", "parenthetical": "citation, quotation marks, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)(l)" }, { "page": "(a)(l)" }, { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "275 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "435-36", "parenthetical": "\"The evidence in this case tends to show that defendant penetrated the genital opening of [the victim's] body with his fingers. Defendant contends this is not a \"sexual act\" under the statute because the Legislature only intended the words \"any object\" in G.S. 14-27.1(4" } ], "opinion_index": 0 }, { "cite": "302 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565531 ], "year": 1981, "pin_cites": [ { "page": "345-46" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0342-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-318.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(a2)" }, { "page": "(a2)" }, { "page": "(a2)" }, { "page": "(a2)" } ], "opinion_index": 0 }, { "cite": "686 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "parenthetical": "citations and quotation marks omitted." } ], "opinion_index": 0 }, { "cite": "686 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "parenthetical": "citations and quotation marks omitted." } ], "opinion_index": 0 }, { "cite": "363 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "year": 2009, "pin_cites": [ { "parenthetical": "citations and quotation marks omitted." }, { "parenthetical": "citations and quotation marks omitted." } ], "opinion_index": 0 }, { "cite": "681 S.E.2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "427", "parenthetical": "citations and quotation marks omitted." }, { "page": "427" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170155 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "156", "parenthetical": "citations and quotation marks omitted." }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0151-01" ] } ], "analysis": { "cardinality": 951, "char_count": 25059, "ocr_confidence": 0.745, "pagerank": { "raw": 8.411867578422581e-08, "percentile": 0.4833326190059729 }, "sha256": "e3ffbbd4a814f09d426d93936d7c857f18463c83b0ef706ad51bab1f5610fc07", "simhash": "1:1eae402e4605999a", "word_count": 4136 }, "last_updated": "2023-07-14T18:13:27.459138+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and THIGPEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBBIE ZEB STOKES" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals the trial court judgments convicting him of aiding and abetting first degree sex offense, two counts of felony child abuse \u2014 sexual act, and first degree sex offense with a child; defendant also appeals the trial court orders enrolling him in satellite-based monitoring. For the following reasons, we find no error in defendant\u2019s trial or judgments but reverse and remand the order for satellite-based monitoring for a new hearing.\nI. Background\nThe State\u2019s evidence tended to show that Becca, a minor child, was residing with her brother, Todd and defendant, their father. Defendant \u201churt[]\u201d Becca, in the \u201c[f]ront part\u201d of her \u201cprivate area\u201d by sticking \u201c[h]is thing[,]\u201d \u201c[a] wiener[,]\u201d in her which caused her to bleed; defendant did this \u201cseveral\u201d times. Todd also \u201cstuck\u201d a toy car in Becca\u2019s \u201cfront part.\u201d Todd witnessed defendant put his fingers in Becca\u2019s vagina on more than one occasion. Defendant also forced Becca to \u201cplay\u201d with Todd\u2019s penis \u201cby putting it in her mouth\u201d on multiple occasions. Dr. Christopher Cerjan, a pediatrician at Shelby Children\u2019s Clinic, examined Becca and noted that Becca\u2019s vaginal exam was abnormal in a manner which would only be caused by repeated \u201cdirect trauma going into the vaginal opening.\u201d\nOn 22 January 2007, defendant was indicted for two counts of felony child abuse \u2014 sexual act, first degree statutory sexual offense, and first degree sex offense with a child. Defendant was found guilty by a jury of all of the charges, specifically felonious child abuse by a sexual act (\u201cchild abuse\u201d), first degree sexual offense with a child under the age of thirteen (\u201csex offense with a child\u201d), aiding and abetting first degree sexual offense with a child under the age of thirteen (\u201caiding and abetting a sex offense\u201d), felonious child abuse by allowing the commission of a sexual act (\u201cchild abuse by allowing a sex act\u201d). The trial court entered judgments wherein defendant was sentenced to imprisonment; the trial court also ordered that defendant be placed on satellite-based monitoring \u201cfor his . . . natural life[.]\u201d Defendant appeals.\nII. Motion to Dismiss\nDefendant contends that the trial court erred in denying his motion to dismiss the charges of child abuse, aiding and abetting a sex offense, and child abuse by allowing a sexual act.\nThe standard of review concerning a motion to dismiss is de novo. In reviewing a motion to dismiss criminal charges, we view all evidence in the light most favorable to the State and give the State every reasonable inference which can be drawn therefrom. To overcome a motiori to dismiss, the State must have presented substantial evidence of each element of the offense charged and of the defendant\u2019s guilt. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Any contradictions or discrepancies in the evidence are for the jury to resolve, and these inconsistencies, by themselves, do not serve as grounds for dismissal.\nState v. Cole, 199 N.C. App. 151, 156, 681 S.E.2d 423, 427, disc. review denied, 363 N.C. 658, 686 S.E.2d 678, disc. review denied, 363 N.C. 658, 686 S.E.2d 679 (2009) (citations and quotation marks omitted.)\nA. Child Abuse\nN.C. Gen. Stat. \u00a7 14-318.4(a2) provides that \u201c[(1) a]ny parent or legal guardian [(2)] of a child less than 16 years of age [(3)] who commits or allows the commission of any sexual act upon\u201d a child is guilty of felonious child abuse. See N.C. Gen. Stat. \u00a7 14-318.4(a2) (2005). \u201c \u2018Sexual act\u2019 means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person\u2019s body[.]\u201d N.C. Gen. Stat. \u00a7 14-27.1(4) (2005).\nDefendant does not contest that he is Becca\u2019s \u201cparent\u201d or that she was \u201cless than 16 years of age\u201d at the time of the offense; see N.C. Gen. Stat. \u00a7 14-318.4(a2), instead, \u201cdefendant contends the State failed to present sufficient evidence [defendant] was in fact the person that inserted an object into the vagina of\u2019 Becca. Defendant argues that Becca testified \u201cthat [defendant] only had vaginal intercourse with her . . . [s]he specifically testified that he committed no other sexual acts against her.\u201d However, Todd testified that he witnessed his father \u201c[mjoving ... in and out\u201d of Becca\u2019s \u201cvagina\u201d with \u201c[h]is finger.\u201d Defendant\u2019s digital penetration of Becca\u2019s vagina would constitute a sexual act. See State v. Lucas, 302 N.C. 342, 345-46, 275 S.E.2d 433, 435-36 (1981) (\u201cThe evidence in this case tends to show that defendant penetrated the genital opening of [the victim\u2019s] body with his fingers. Defendant contends this is not a \u201csexual act\u201d under the statute because the Legislature only intended the words \u201cany object\u201d in G.S. 14-27.1(4) to mean any object foreign to the human body. ... [W]e are of the opinion, and so hold, that the Legislature did not intend to limit the meaning of the words \u201cany object\u201d to objects foreign to the human body.\u201d) Any inconsistencies between Becca\u2019s testimony and Todd\u2019s testimony would be for \u201cthe jury to resolve[.]\u201d Cole, 199 N.C. App. at 156, 681 S.E.2d at 427. Accordingly, this argument is without merit.\nB. Aiding and Abetting a Sex Offense and Child Abuse by Allowing a Sex Act\nDefendant\u2019s conviction for aiding and abetting a sex offense was based upon the allegation that defendant \u201cunlawfully, willfully and feloniously did allow, aid, abet, encourage, and knowingly fail to protect his 10 year old child, [Becca] . . ., from a sexual act, the penetration of her vagina and anus by an object and by the fingers of his juvenile teenage son\u201d Todd. Defendant\u2019s conviction for child abuse by allowing a sex act was based upon the allegation that defendant \u201cunlawfully, willfully and feloniously did allow a sexual act to be committed against his 10-year-old daughter by his juvenile son by inserting and allowing to be inserted an object and fingers into the vagina and anus of\u2019 Becca.\nN.C. Gen. Stat. \u00a7 14-27.4(a)(l) provides that\n[a] person is guilty of a sexual offense in the first degree if the person eng\u00e1ges in a sexual act... [w]ith 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 victimf.]\nN.C. Gen. Stat. \u00a7 14-27.4(a)(l) (2005). Again, the elements for child abuse by allowing a sex act are \u201c[a]ny parent or legal guardian of a child less than 16 years of age who commits or allows the commission of any sexual act upon\u201d the child. See N.C. Gen. Stat. \u00a7 14-318.4(a2). In State v. Holcombe, this Court stated:\nAlthough it is not defined by our statutes, our Supreme Court has upheld three elements of the crime of aiding and abetting: (1) that the principal crime was committed by another; (2) that the defendant knowingly advised, instigated, encouraged, procured, or aided the other person; and (3) that the defendant\u2019s actions or statements caused or contributed to the commission of the principal crime by the other person.\n_ N.C. App. _, _, 691 S.E.2d 740, 746 (2010) (citation, quotation marks, and brackets omitted).\nDefendant contends that\n[u]nder the theory of aiding and abetting the State must prove that some person other than the defendant committed the crime [s] of . . . [aiding and abetting a sex offense and child abuse by allowing a sex act]. The question to be asked is can [defendant] aid and abet [and allow Todd], a 12-year old, in committing the crime [s charged] . . . when [Todd] is acting under duress through the threats from [defendant].\nThe defendant argues that because [Todd] was acting under duress and did not engage in the act willfully, he did not commit a crime and therefore, there was no basis for conviction of the defendant].]\nHere, defendant does not contest that Todd committed the elements of the crimes charged or that he committed the elements of aiding and abetting and allowed such crimes; defendant only contends that because he forced Todd to commit the acts against Becca, Todd was acting under duress and thus could not be guilty of a crime.\nWe find defendant\u2019s argument to be both offensive and absurd. However, even assuming arguendo, that defendant\u2019s argument is reasonable and that Todd was under duress while performing certain acts upon his sister, such acts would still constitute a crime. Duress is an affirmative defense. See State v. Cheek, 351 N.C. 48, 61, 520 S.E.2d 545, 553 (1999), cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000). An affirmative defense is \u201c[a] defendant\u2019s assertion of facts and arguments that, if true, will defeat the plaintiff\u2019s or prosecution\u2019s claim, even if all the allegations in the complaint are true.\u201d Black\u2019s Law Dictionary 482 (9th ed. 2009). Thus, in essence, duress would provide Todd with a legally valid reason for committing the acts he did; duress does not however transform those acts into non-criminal activity as defendant argues. Whether Todd was acting of his own free will or under duress, or any level of volition between, his acts still constitute a crime, and thus this argument is without merit.\nIII. Testimony\nDefendant next argues that the trial court erred in allowing the testimony of various witnesses.\nA. Mr. Billy Payne\nDefendant objected during his trial, but \u201c[e]ven if the complaining party can show that the trial court erred in its ruling, relief will not ordinarily be granted absent a showing of prejudice.\u201d State v. Edmonds, _ N.C. App. _, _, 713 S.E.2d 111, 117 (2011) (citation and quotation marks omitted).\nDefendant\u2019s first argument is regarding the testimony of Becca\u2019s adoptive father, Mr. Billy Payne; defendant argues that Mr. Payne\u2019s testimony \u201cnot only went far beyond that of [Becca\u2019s] but in fact contradicted her testimony[.]\u201d Mr. Payne\u2019s allegedly erroneous testimony included stating that Todd \u201cput his thing in her and that daddy was there when he did that, and that daddy put his thing in her mouth and made a mess all over her on numerous occasions.\u201d Even assuming arguendo that the trial court erred in allowing Mr. Payne to testify as he did, it was not prejudicial in light of Becca\u2019s testimony establishing numerous sexual offenses committed against her, Todd\u2019s testimony regarding what he witnessed, and Dr. Cerjan\u2019s testimony which stated that Becca\u2019s vaginal exam was abnormal in a manner which would only be caused by repeated \u201cdirect trauma going into the vaginal opening.\u201d In fact, Becca\u2019s and Todd\u2019s testimonies alone establish all of the elements of the crimes with which defendant was charged. Accordingly, we find no prejudice, and this argument is overruled.\nB. Plain Error\nDefendant concedes that he did not object to some of the witnesses\u2019 testimonies and thus requests this Court review these issues for plain error.\n[T]he plain error rule is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where the error is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation, quotation marks, ellipses, and brackets omitted). \u201cPlain error is error so fundamental that it tilted the scales and caused the jury to reach its verdict convicting the defendant.\u201d State v. McNeil, 196 N.C. App. 394, 400, 674 S.E.2d 813, 817 (2009) (citation and quotation marks omitted).\n1. Todd\nAs to Todd\u2019s testimony, regarding what his father did to Becca and himself, defendant notes that it differs from Becca\u2019s in that she testified only that Todd \u201cinsert[ed] a toy car into her vaginal opening\u201d whereas Todd testified \u201che had oral sex with her, anal sex with her and vaginal sex with her[.]\u201d Defendant\u2019s convictions involving acts which he forced Todd to commit were aiding and abetting a sex offense and child abuse by allowing a sex act. Thus, even assuming arguendo that Todd\u2019s testimony was erroneously admitted, defendant fails to show plain error because Becca\u2019s testimony alone establishes the elements of the crimes for defendant\u2019s relevant convictions. See N.C. Gen. Stat. \u00a7\u00a7 14-27.4(a)(l), -318.4(a2). Accordingly, this argument is overruled.\n2. Dr. Robert Costrini\nDefendant next argues that the trial court erroneously allowed Dr. Robert Costrini, Todd\u2019s therapist, to testify as he did because Todd\nsaid the only thing that occurred in the presence of his father was oral sex. Dr. Costrini testified that typically when the three were together it involved vaginal penetration with his penis and anal penetration. The testimony alleging that [defendant] would undress and remove his penis and masturbate while watching the two children was never testified to by\nTodd or Becca. Again, even assuming arguendo that the trial court erred in allowing Dr. Costrini to testify in the manner described herein, defendant cannot show plain error in light of Becca\u2019s, Todd\u2019s, and Dr. Cerjan\u2019s testimonies. This argument is overruled.\n3. Investigator T.O. Curry\nDefendant also contends that\n[although [Todd]\u2019s testimony was clear, that his father was not present when anal or vaginal intercourse was occurring between he and [Becca], Detective Curryf, law enforcement investigator,] was allowed to dispute and contradict that testimony by saying that [Todd] told him that his father was present in the room when he placed his penis inside the vagina of [Becca],\nDefendant also argues that \u201cthe trial court committed reversible plain error by allowing Detective Currie [sic] to give improper testimony of [Todd]\u2019s credibility by stating \u201cI felt like he told me the truth in what he told me[.]\u2019 \u201d (Original in all caps.). Again, in light of Becca\u2019s, Todd\u2019s, and Dr. Cerjan\u2019s testimonies, any erroneous admission of this portion of Detective Curry\u2019s testimony is not plain error. This argument is overruled.\n4. Mr. Billy Payne\nAs to Mr. Payne\u2019s testimony defendant also argues that \u201cthe trial court committed reversible plain error by allowing Billy Payne to give improper testimony of [Beccaj\u2019s credibility by stating [Becca] has never said \u201cit didn\u2019t happen or that someone else did those things to her.\u201d (Original in all caps.) Again, in light of the other evidence against defendant the admission of such a statement would not constitute plain error.\nIV. Acting in Concert\nDefendant next contends that the trial court erroneously instructed the jury on acting in concert when \u201c[t]he evidence at trial showed that [Todd] was a 12-year old boy who acted under the direct orders and threats from [defendant] and therefore was not acting together in harmony or in conjunction with another pursuant to a common plan or purpose.\u201d Similar to his aiding and abetting argument, defendant essentially argues here that because Todd was a victim of the crime, he could not be acting in concert with defendant to commit the crime. Defendant again concedes that because he failed to object at trial we may only review this issue for plain error. We have read the jury instructions as a whole, and in light of the fact that they correctly state the law as to aiding and abetting, defendant did not object to the aiding and abetting instruction, and the fact that the jury could have found defendant guilty of aiding and abetting as to the acts which he forced Todd to perform, rather than finding him guilty of acting in concert with Todd, we conclude that defendant has not met the high hurdle of plain error. This argument is overruled.\nV. Satellite-Based Monitoring\nLastly, defendant requests we review the trial court\u2019s orders requiring him to enroll in satellite-based monitoring (\u201cSBM\u201d). Defendant failed to file a written notice of appeal from his orders imposing SBM but did file a petition for certiorari asking us to review this issue. The State also requests that this Court allow defendant\u2019s petition for certiorari. In State v. Mann, this Court stated:\nDefendant petitions this Court for writ of certiorari because he failed to file written notice of appeal as required by State v. Brooks, _ N.C. App. _, _, 693 S.E.2d 204, 206 (2010) (holding oral notice pursuant to N.C.R. App. P 4(a)(1) insufficient to confer jurisdiction on this Court because SBM hearings involve a civil \u201c \u2018regulatory scheme\u2019 \u201d (quoting State v. Bare, 197 N.C. App. 461, 472, 677 S.E.2d 518, 527 (2009), disc. review denied, 364 N.C. 436, 702 S.E.2d 492 (2010))). The Brooks opinion was filed 18 May 2010 and defendant was sentenced two months later on 19 July 2010. Because Brooks was filed only two months before defendant\u2019s sentencing, we choose, in our discretion, to allow the petition for writ of certiorari.\n_ N.C. App. _, _, _S.E.2d _, _ (COA 10-1186) (Aug. 2, 2011). Here, the trial court orders requiring defendant to enroll in SBM were entered on 16 August 2010. As 16 August 2010 is within three months of when State v. Brooks was filed, we grant defendant\u2019s petition for certiorari in our discretion. See id.\nAs to the orders for SBM, defendant specifically argues that \u201cthe trial court committed reversible error by sentencing the defendant to a lifetime satellite-based monitoring program for the rest of his natural life when the court made a finding defendant did not require the highest level of satellite monitoring.\u201d (Original in all caps.) Defendant requests a new hearing regarding SBM. We agree.\nIndeed, defendant\u2019s SBM orders conclude that he \u201chas not been classified as a sexually violent predator[,]\u201d \u201cis not a recidivistf,]\u201d and that though his offenses \u201cdid involve the physical, mental, or sexual abuse of a minor\u201d defendant \u201cdoes not require the highest possible level of supervision and monitoring[.]\u201d Despite these findings, the orders go on to require defendant to enroll in SBM for life. The State\u2019s brief also essentially concedes that defendant should receive a new hearing as to SBM as it \u201crequestfs] remand for clarification in light of the conflict between the findings and the order.\u201d In addition, it appears from the transcript that this was not a clerical error where the trial court mistakenly checked the wrong box on the form. The trial court stated that it\nwas my assumption that he would not need monitoring in the Department of Corrections. Well, I think given his lack of previous record, the fact that he\u2019s going to be serving a long-term prison sentence, and that there\u2019s no indication that he has victimized any other person other than the two children, I am not going to find that he requires the highest level of satellite monitoring.\nHowever, our statutes do not provide for different levels of SBM; the proper finding is that the defendant requires, or does not require, \u201cthe highest possible level of supervision and monitoring[,]\u201d and \u201cthe highest level of supervision and monitoring\u201d is, by definition, SBM. See State v. Kilby, 198 N.C. App. 363, 367 n.2, 679 S.E.2d 430, 432 n.2 (2009). As this Court has noted, the statutory phrase\n\u2018highest possible level of supervision and monitoring\u2019 simply refers to SBM, as the statute provides only for SBM and does not provide for any lesser levels or forms of supervision or monitoring of a sex offender. If SBM is imposed, the only remaining variable to be determined by the court is the duration of the SBM.\nId.\nIt appears from the transcript that the trial court may have determined defendant would not require \u201cthe highest possible level of supervision and monitoring\u201d in the form of SBM since defendant would be in prison for such a long time, but nonetheless th\u00e9 trial court ordered SBM because if the defendant is released from prison, SBM would be required. However, the determination as to whether SBM is required is to be based upon the relevant statutory language, rather than defendant\u2019s likely term of imprisonment. See State v. Causby, 200 N.C. App. 113, 115, 683 S.E.2d 262, 263-64 (2009) (\u201cN.C. Gen. Stat. \u00a7 14-208.40A(d) provides that if the court finds that the offender committed an offense that involved the physical, mental, or sexual abuse of a minor, that the offense is not an aggravated offense or a violation of G.S. 14-27.2A or G.S. 14-27.4A and the offender is not a recidivist, the court shall order that the Department of Correction do a risk assessment of the offender. Upon receipt of that risk assessment, the. court shall determine whether, based on the Department\u2019s risk assessment, the offender requires the highest possible level of supervision and monitoring.\u201d N.C. Gen. Stat. \u00a7 T4-208.40A(e). If . . . the trial court determines that the offender does require the highest possible level of supervision and monitoring, then the trial court \u201cshall order the offender to enroll in a satellite-based monitoring program for a period of time to be specified by the court.\u201d (citation, quotation marks, and brackets omitted)). We find nothing in Chapter 14, Article 27A of the North Carolina General Statutes which provides that the length of the sentences of a defendant required to be on SBM should be a factor in determining if defendant \u201crequires\u201d SBM, if and when he is released from prison. As the trial court\u2019s finding that defendant \u201cdoes not require the highest possible level of supervision and monitoring\u201d does not support the order\u2019s decree that defendant enroll in. SBM for life and as it is unclear whether either the finding or the requirement of SBM was entered in error, we must reverse and remand defendant\u2019s orders requiring SBM for a new hearing.\nVI. Conclusion\nFor the foregoing reasons, we find no error in defendant\u2019s trial but order that he receive a new hearing regarding his enrollment in SBM.\nNO ERROR in part; REVERSED and REMANDED in part.\nJudges GEER and THIGPEN concur.\n. Pseudonyms will be used to protect the identity of the minor children involved in this case.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Sonya M. CallowayDurham, for plaintiff-appellee.", "Haral E. Carlin, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBBIE ZEB STOKES\nNo. COA11-373\n(Filed 1 November 2011)\n1. Sexual Offenses \u2014 child abuse with sexual act \u2014 digital penetration\nThe trial court did not err by denying defendant\u2019s motion to dismiss a charge of felonious child abuse with a sexual act where defendant contended that digital penetration did not constitute an \u201cobject\u201d within the meaning of N.C.G.S. \u00a7 14-27.1(4). Defendant\u2019s digital penetration of the victim would constitute a sexual act.\n2. Aiding and Abetting \u2014 sex offense \u2014 duress\u2014criminality\nThe trial court did not err by denying defendant\u2019s motion to dismiss a charge of aiding and abetting a sex offense where defendant argued that there was no crime to aid and abet because he forced his teenage son to commit the acts against his daughter. Duress would have provided the son with a legally valid reason for committing the acts, but would not have transformed those acts into non-criminal activity.\n3. Evidence \u2014 contradictory testimony \u2014 not prejudicial\u2014 other testimony\nIn light of other testimony, there was no prejudice in a prosecution for multiple offenses involving the sexual abuse of a child from the testimony which defendant argued contradicted the victim.\n4. Evidence \u2014 no plain error \u2014 other evidence\nIn light of other evidence, there was no plain error in a prosecution arising from child sexual abuse in the admission of the testimony of several witnesses.\n5. Criminal Law \u2014 acting in concert \u2014 instructions\u2014duress\u2014 law accurately stated\nThe trial court did not err in its instructions on acting in concert in a child sexual abuse case where defendant argued that there was no common action because the second person was a 12 year old boy who acted under defendant\u2019s direct orders and threats.\n6. Satellite-Based Monitoring \u2014 findings\u2014highest-level of supervision not needed \u2014 long term of imprisonment\nOrders requiring lifetime satellite-based monitoring (SBM) were reversed and remanded where the trial court found that defendant did not require the highest possible level of supervision and monitoring but ordered that defendant enroll in SBM for life. The trial court may have determined that defendant would not require the highest level of supervision and monitoring because of the length of his sentence, but wanted SBM if defendant was released from prison. However, the highest level of supervision is SBM and the determination is based on the relevant statutory language rather than defendant\u2019s likely term of imprisonment.\nAppeal by defendant from judgments entered 16 August 2010 by Judge F. Lane Williamson in Superior Court, Cleveland County. Heard in the Court of Appeals 29 September 2009.\nAttorney General Roy A. Cooper, III, by Sonya M. CallowayDurham, for plaintiff-appellee.\nHaral E. Carlin, for defendant-appellant." }, "file_name": "0529-01", "first_page_order": 539, "last_page_order": 550 }