{ "id": 4245289, "name": "STATE OF NORTH CAROLINA v. DARIUS GREEN", "name_abbreviation": "State v. Green", "decision_date": "2013-08-20", "docket_number": "No. COA12-1466", "first_page": "121", "last_page": "129", "citations": [ { "type": "official", "cite": "229 N.C. App. 121" } ], "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": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "661 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641011 ], "year": 2008, "pin_cites": [ { "page": "293", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0290-01" ] }, { "cite": "646 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638717, 12638718, 12638719 ], "year": 2007, "pin_cites": [ { "page": "111", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0105-01", "/se2d/646/0105-02", "/se2d/646/0105-03" ] }, { "cite": "735 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2012, "pin_cites": [ { "page": "380", "parenthetical": "internal quotations and citations omitted" }, { "page": "380-81" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(la)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "693 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "206", "parenthetical": "holding that the defendant was required to file a written notice of appeal from SBM hearings because an order for SBM is a civil order" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 193", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176874 ], "year": 2010, "pin_cites": [ { "page": "194-95", "parenthetical": "holding that the defendant was required to file a written notice of appeal from SBM hearings because an order for SBM is a civil order" } ], "opinion_index": 0, "case_paths": [ "/nc-app/204/0193-01" ] }, { "cite": "679 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "900", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 500", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4169238 ], "year": 2009, "pin_cites": [ { "page": "505", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0500-01" ] }, { "cite": "29 Cal. Rptr. 2d 451", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "Fla. Stat. \u00a7 794.011", "category": "laws:leg_statute", "reporter": "Fla. Stat.", "year": 1989, "pin_cites": [ { "page": "(l)(h)" } ], "opinion_index": 0 }, { "cite": "625 So. 2d 51", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7477364 ], "year": 1993, "pin_cites": [ { "page": "55", "parenthetical": "citing Fla. Stat. \u00a7 794.011(l)(h) (1989)" } ], "opinion_index": 0, "case_paths": [ "/so2d/625/0051-01" ] }, { "cite": "275 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "436", "parenthetical": "holding that the defendant's alleged insertion of his fingers into the victim's vagina constituted a sexual act because the defendant's fingers were within the definition of \"any object\"" } ], "opinion_index": 0 }, { "cite": "302 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565531 ], "year": 1981, "pin_cites": [ { "page": "346", "parenthetical": "holding that the defendant's alleged insertion of his fingers into the victim's vagina constituted a sexual act because the defendant's fingers were within the definition of \"any object\"" } ], "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.", "weight": 2, "year": 2011, "pin_cites": [ { "page": "(4)" }, { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2011, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "451 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "223", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "339 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556681 ], "year": 1994, "pin_cites": [ { "page": "192", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0172-01" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "455", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "year": 2000, "pin_cites": [ { "page": "378", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "186 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154614 ], "year": 2007, "pin_cites": [ { "page": "62", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0057-01" ] }, { "cite": "715 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "296", "parenthetical": "finding any error was harmless where the evidence against the defendant included an eyewitness's testimony at trial that the defendant attacked and stabbed the victim" } ], "opinion_index": 0 }, { "cite": "190 N.C. App. 765", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158604 ], "year": 2008, "pin_cites": [ { "page": "771", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0765-01" ] }, { "cite": "730 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "827" } ], "opinion_index": 0 }, { "cite": "693 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "162" }, { "page": "162" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4177118 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "43" }, { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nc-app/204/0037-01" ] }, { "cite": "361 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3744653 ], "year": 2007, "pin_cites": [ { "page": "390", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0382-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "891", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "304", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "567 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "123", "parenthetical": "citation omitted" }, { "page": "123" } ], "opinion_index": 0 }, { "cite": "356 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511282 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "154", "parenthetical": "citation omitted" }, { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0150-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "278-79" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "726 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2012, "pin_cites": [ { "page": "159" } ], "opinion_index": 0 }, { "cite": "366 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4355312 ], "year": 2012, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/366/0127-01" ] } ], "analysis": { "cardinality": 963, "char_count": 22568, "ocr_confidence": 0.712, "pagerank": { "raw": 6.002487809308052e-08, "percentile": 0.3727246260303207 }, "sha256": "8a1baaec5fee4f55cd5d2bae8887e4d15f7d4657ded4ce65ab522a9116d4df18", "simhash": "1:0326452b5253d9be", "word_count": 3674 }, "last_updated": "2023-07-14T15:07:10.338246+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DARIUS GREEN" ], "opinions": [ { "text": "CALABRIA, Judge.\nDarius Green (\u201cdefendant\u201d) appeals from judgments entered upon jury verdicts finding him guilty of first-degree burglary, first-degree sexual offense, three counts of robbery with a dangerous weapon (\u201cRWDW\u201d), and assault with a deadly weapon inflicting serious injury (\u201cAWDWISI\u201d). We find no error in part and reverse and remand in part.\nI. Background\nOn 20 September 2011, after .approximately 1:00 a.m., two men (\u201cthe men\u201d) entered a residence on Tenth Street in Wilmington, North Carolina, and held M.C. (\u201cMary\u201d), her boyfriend and three minor children at gunpoint in one of the bedrooms (\u201cthe home invasion\u201d). The men wore black hooded sweatshirts (\u201choodies\u201d), the lower portions of the men\u2019s faces were covered, and one of the men carried a gun. The man with the gun asked Mary\u2019s sixteen-year-old son (\u201cthe son\u201d) where \u201cthe money\u201d was and forced him into a different bedroom. When the son did not find the money, the man hit him in the face. As a result, the son sustained injuries to his nose, face, and one of his teeth.\nOne of the men took Mary into the kitchen, pointed a gun to her head and ordered her to undress. Once Mary was undressed, while still pointing a gun to her head, the man ordered her to insert her own fingers into her vagina and \u201cplay with herself.\u201d Mary reluctantly complied.\nWhen the men left, they took cash, jewelry, cell phones, keys, and a laptop computer. The family contacted law enforcement from a neighbor\u2019s house. When officers arrived, Mary described the men as \u201ctall, lean black guys\u201d wearing hoodies and masks. Mary and her son had known defendant for several years and Mary\u2019s son had spent some time with defendant. Both Mary and her son identified defendant as one of the men and the son provided \u201cgreat detail\u201d to the officers about how he recognized the man who hit him. Specifically, the son told the officers that the object he was hit with felt like a gun and that he recognized defendant\u2019s nose, eyes, and voice.\nOn 31 October 2011, defendant was indicted for first-degree burglary, first-degree sex offense, second-degree kidnapping, AWDWISI, two counts of first-degree kidnapping and three counts of armed robbery for the home invasion.\nAt trial in New Hanover Superior Court, both Mary and her son testified for the State and identified defendant as one of the assailants in the home invasion. The State also sought to introduce evidence of a robbery at a Holiday Inn in Wilmington, North Carolina (\u201cHoliday Inn robbery\u201d) that occurred on 22 September 2011. Two days after the home invasion and robbery, a man (\u201cthe robber\u201d) wearing a black hoodie and a mask entered the lobby of the Holiday Inn and took money from the cash drawer. Defendant pled guilty to the Holiday Inn robbery on 17 July 2012. After viewing a surveillance video of the Holiday Inn robbery and hearing three witnesses in a voir dire proceeding regarding admissibility under Evidence Rule 404(b), the trial court entered an order allowing the State to introduce evidence of the Holiday Inn robbery. At trial, the State introduced the surveillance video footage and testimony from four witnesses regarding the Holiday Inn robbery.\nThe jury entered verdicts finding defendant guilty of first-degree burglary, first-degree kidnapping, first-degree sexual offense, AWDWISI, and three counts of RWDW. The jury found defendant not guilty of one count of first-degree kidnapping and one count of second-degree kidnapping. The court arrested judgment on the jury verdict of guilty of first-degree kidnapping. Defendant was sentenced to 87 to 114 months for first-degree burglary, 316 to 389 months for first-degree sex offense, and 87 to 114 months for one count of RWDW. These sentences were ordered to be served concurrently. Defendant was sentenced to 87 to 114 months for the second count of RWDW to be served at the expiration of the previous sentence. Defendant was sentenced to 87 to 114 months for the third count of RWDW and 34 to 50 months for AWDWISI. These two sentences were ordered to be served concurrently, but the consolidated sentence was ordered to run at the expiration of the previous RWDW judgment. After the trial court made findings that defendant had been convicted of a sexually violent offense and that the offense was an aggravated offense, the trial court ordered that upon defendant\u2019s release from incarceration, he was to register as a sex offender for life and also to enroll in lifetime satellite-based monitoring (\u201cSBM\u201d). Defendant appeals.\nII. 404(b) Evidence\nDefendant argues that the trial court\u2019s admission of evidence of the Holiday Inn robbery under Rule 404(b) was prejudicial error because it was not sufficiently similar to the home invasion. We disagree.\nOn appeal, we review the trial court\u2019s order regarding its 404(b) ruling to determine \u201cwhether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b).\u201d State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012). Subsequently, we \u201creview the trial court\u2019s Rule 403 determination for abuse of discretion.\u201d Id.\n\u201cEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2011). However, the evidence may \u201cbe admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\u201d Id. Rule 404(b) is a\ngeneral rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\nState v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).\n\u201cTo effectuate these important evidentiary safeguards, the rule of inclusion described in Coffey is constrained by the requirements of similarity and temporal proximity.\u201d State v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002) (citation omitted). \u201c[T]he similarities between the two situations\u201d do not need to \u201c \u2018rise to the level of the unique and bizarre.\u2019 Rather, the similarities simply must tend to support a reasonable inference that the same person committed both the earlier and later acts.\u201d State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991) (internal citation omitted). The similarities, however, must be more than generic characteristics \u201c \u2018inherent to most\u2019 crimes of that type\u201d to establish sufficient similarity. State v. Carpenter, 361 N.C. 382, 390, 646 S.E.2d 105, 111 (2007) (citation omitted).\nIn the instant case, defendant previously pled guilty to the Holiday Inn robbery in federal court. At trial, the State sought to introduce evidence regarding the Holiday Inn robbery to show \u201cproof of identity, intent, motive, opportunity, preparation, knowledge, modus operandi, and a common scheme or plan.\u201d After hearing evidence on voir dire, the trial court entered an order allowing the State to introduce the evidence.\nThe trial court\u2019s findings in the order admitting evidence of the Holiday Inn robbery included multiple similarities between the robberies. Specifically, both robberies were armed robberies which occurred within two days of each other, the perpetrators in both robberies wore black hoodies and dark fabric covering the bottom portion of their faces, immediately demanded money upon entering the buildings, utilized a black semi-automatic handgun in a similar manner by \u201cpushing\u201d it to the heads of the victims, restrained victims in a similar manner, and moved victims from place to place during the course of the crimes, searching for money. Defendant contends that these similarities were \u201cgeneric to the act of robbery\u201d and insufficient to establish substantial evidence of similarity. Al-Bayyinah, 356 N.C. at 155, 567 S.E.2d at 123.\nEven assuming, arguendo, that defendant is correct that the evidence regarding the similarities between the robberies is insufficient for the trial court to allow the admission of the evidence pursuant to Rule 404(b), defendant bears the burden of showing that any error by the trial court was prejudicial. See State v. LePage, 204 N.C. App. 37, 43, 693 S.E.2d 157, 162 (2010). \u201cA defendant is prejudiced by the trial court\u2019s evidentiary error where there is a \u2018reasonable possibility that, had the error in question not been committed, a different result would have been reached at. the trial out of which the appeal arises.\u2019 \u201d State v. Miles,_N.C. App._,_, 730 S.E.2d 816, 827 (2012), aff\u2019d per curiam, _N.C._;__ S.E.2d_(2013) (citation omitted). Where there was overwhelming evidence of the defendant\u2019s guilt, this Court has held that the \u201cdefendant [could] not show prejudice in the trial court\u2019s admission of the challenged evidence as it would have no probable impact on the jury\u2019s decision.\u201d State v. Zinkand, 190 N.C. App. 765, 771, 661 S.E.2d 290, 293 (2008) (citation omitted); see also LePage, 204 N.C. App. at 44, 693 S.E.2d at 162.\nIn the instant case, defendant claims that \u201c[g]iven the weaknesses in the identification of the masked assailants at [Mary\u2019s] house, two of whom were never identified, the evidence on the Holiday Inn robbery likely played a key role in the jury\u2019s determination of [defendant\u2019s] guilt.\u201d However, the State\u2019s evidence showed that on the night of the home invasion, both Mary and her son identified defendant as one of the men. Mary and her son had known defendant for several years, defendant referred to Mary as \u201caunt,\u201d and Mary\u2019s son had spent some time with defendant. The son provided \u201cgreat detail\u201d to law enforcement about how he recognized the man with a gun as defendant, including that he recognized defendant\u2019s nose, eyes, and voice. At trial, both Mary and her son also identified defendant as the man. Mary testified that because the scarf covering defendant\u2019s face was not thick, she could see through it, and stated that she could see defendant\u2019s eyes and nose, as well as hear his voice.\nThe State also offered evidence that not only did defendant know that Mary\u2019s brother hid money at her house, but when Mary told the men that the money was at her mother\u2019s house, the men left the house and shortly thereafter someone attempted to break into Mary\u2019s mother\u2019s house. While it is possible that others could have been privy to this information, defendant\u2019s prior relationship with the family supports an inference that he was the perpetrator.\nWe determine from the evidence of defendant\u2019s knowledge of the family\u2019s habits and the evidence from two eyewitnesses who knew defendant prior to the home invasion, that there is not a reasonable possibility that the jury would have reached a different result had the contested evidence not been admitted at trial. See, e.g., State v. Castaneda, _N.C. App._,_, 715 S.E.2d 290, 296 (2011) (finding any error was harmless where the evidence against the defendant included an eyewitness\u2019s testimony at trial that the defendant attacked and stabbed the victim). Therefore, assuming, arguendo, that admission of the 404(b) evidence was error, defendant has failed to show how he was prejudiced by the admission of the evidence. We determine any error was harmless.\nIII. Motion to Dismiss\nDefendant also argues that the trial court erred when it denied defendant\u2019s motion to dismiss the first-degree sex offense charge, asserting that defendant did not engage in a sexual act with the victim because he did not come into contact with her. We disagree.\n\u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo.\u201d State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). \u201c \u2018Upon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense.\u2019 \u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation omitted). The trial court must consider the evidence \u201cin the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted).\n\u201cA person is guilty of a sexual offense in the first-degree if the person engages in a sexual act... [w]ith another person by force and against the will of the other person ....\u2019\u2019N.C. Gen. Stat. \u00a7 14-27.4(a) (2011). \u201cSexual act ... 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) (2011). The North Carolina Supreme Court has held that \u201csexual act\u201d encompasses \u201cevery penetration other than vaginal intercourse\u201d and thus, the term \u201cany object\u201d embraces \u201cparts of the human body as well as inanimate or foreign objects.\u201d State v. Lucas, 302 N.C. 342, 346, 275 S.E.2d 433, 436 (1981) (holding that the defendant\u2019s alleged insertion of his fingers into the victim\u2019s vagina constituted a sexual act because the defendant\u2019s fingers were within the definition of \u201cany object\u201d).\nThere are no North Carolina cases determining whether a victim\u2019s forced penetration of her own vagina with her own fingers constitutes first-degree sexual offense. However, cases from other states regarding this issue provide some guidance. The Florida Court of Appeals for the Third District has held that \u201cthe coerced insertion of a woman\u2019s own fingers in her intimate body orifice, against her will and at the command of a person that is intimidating her,\u201d was prohibited by a Florida statute defining \u201csexual battery\u201d as \u201coral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.\u201d State v. Kirby, 625 So. 2d 51, 55 (Fla. Dist. Ct. App. 1993) (citing Fla. Stat. \u00a7 794.011(l)(h) (1989)). In addition, a California court has held that a statute prohibiting the penetration of genital or anal openings by foreign objects also included cases of forced self-penetration. People v. Keeney, 29 Cal. Rptr. 2d 451 (3d Dist. 1994).\nDefendant contends that since Mary touched herself, the jury could not find that he \u201cengaged\u201d in a sexual act with Mary within the meaning of the statute. First-degree sexual offense in North Carolina requires that the defendant \u201cengages in a sexual act... [w]ith another person.\u201d N.C. Gen. Stat. \u00a7 14-27.4(a) (2011). When statutory language is clear and unambiguous, the Court \u201cmust conclude that the legislature intended the statute to be implemented according to the plain meaning of its terms.\u201d State v. Watterson, 198 N.C. App. 500, 505, 679 S.E.2d 897, 900 (2009) (citation omitted). Black\u2019s Law Dictionary 608 (9th ed. 2009) defines \u201cengage\u201d as \u201c[t]o employ or involve oneself; to take part in; to embark on.\u201d \u201cWith\u201d can be defined as \u201ca function word [used] to indicate a participant in an action, transaction, or arrangement ....\u201d Merriam-Webster's Collegiate Dictionary 1438 (11th ed. 2007).\nIn the instant case, in the light most favorable to the State, the evidence showed that defendant forced Mary, at gunpoint, to remove her clothing and insert her own fingers into her vagina. While defendant did not physically touch Mary, he was \u201cinvolved\u201d in that he coerced her to touch herself. Defendant was not merely an observer or bystander, but rather he participated in the action by directing Mary.\nGiven that the text of North Carolina statutes do not explicitly exclude instances such as the one in this case and the persuasive trend in other courts is to recognize coerced self-penetration as a sexual offense, we hold that the act of forcing a victim to self-penetrate constitutes \u201cengagfing] in a sexual act... with another person... and against the will of the other person.\u201d N.C. Gen. Stat. \u00a7 14-27.4(a) (2011). Defendant\u2019s assertion that he did not engage in a sexual act with Mary because he did not make physical contact with her therefore fails. Accordingly, we find no error in the trial court\u2019s denial of defendant\u2019s motion to dismiss the first-degree sex offense charge.\nIV. Lifetime Registration and SBM\nDefendant argues that the trial court erred in ordering lifetime sex offender registration and lifetime satellite-based monitoring (\u201cSBM\u201d). We agree.\nAs an initial matter, we note that defendant filed a petition for writ of certiorari. Defendant conceded that although he properly gave oral notice of appeal in open court, he failed to file written notice of appeal as required by State v. Brooks, 204 N.C. App. 193, 194-95, 693 S.E.2d 204, 206 (2010) (holding that the defendant was required to file a written notice of appeal from SBM hearings because an order for SBM is a civil order). Therefore, both defendant and the State recognize that defendant\u2019s \u201cright to prosecute [his] appeal has been lost by failure to take timely action.\u201d N.C. R. App. P. 21(a)(1) (2012). Defendant requests that we grant his petition for writ of certiorari pursuant to N.C. R. App. P. 21(a)(1). In our discretion, we grant defendant\u2019s petition.\nN.C. Gen. Stat. \u00a7 14-208.40A requires that if an offender is classified as a sexually violent predator, is a recidivist, has committed an aggravated offense, or was convicted of the rape or sex offense of a child, the court shall order the offender to enroll in lifetime satellite-based monitoring. N.C. Gen. Stat. \u00a7 14-208.40A(2011). Additionally, \u201c[a] person who is a State resident and who has a reportable conviction shall be required to maintain registration with the sheriff of the county where the person resides.\u201d N.C. Gen. Stat. \u00a7 14-208.7 (2011). \u201cAggravated offense\u201d is defined as\nany 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.\nN.C. Gen. Stat. \u00a7 14-208.6(la) (2011).\nWhen a trial court determines whether a crime constitutes an aggravated offense, it \u201cis only to consider the elements of the offense of which a defendant was convicted and is not to consider the underlying factual scenario giving rise to the conviction. In other words, the elements of the offense must fit within the statutory definition of aggravated offense.\u201d State v. Boyett,_N.C. App._,_, 735 S.E.2d 371, 380 (2012) (internal quotations and citations omitted). In Boyett, this Court held that a second-degree sexual offense was not an aggravated offense to support lifetime SBM because penetration was not a required element of second-degree sex offense conviction. Id. at_, 735 S.E.2d at 380-81.\nIn the instant case, the jury found defendant guilty of first-degree sexual offense. Under North Carolina statutes, \u201c[a] person is guilty of a sexual offense in the first degree if the person engages in a sexual act... [w]ith another person by force and against the will of the other person, and... [e]mploys or displays a dangerous or deadly weapon[.]\u201d N.C. Gen. Stat. \u00a7 14-27.4(a) (2011). \u201c \u2018Sexual act\u2019 means cunnilingus, fellatio, analingus, or anal intercourse ... [or] 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) (2011).\nSince our determination of \u201caggravated offense\u201d triggering lifetime registration and SBM is limited to considering only the elements of the conviction offense, and penetration is not a required element of first-degree sexual offense, defendant was not convicted of an aggravated offense. Therefore, the trial court improperly ordered lifetime sex offender registration and lifetime SBM.\nV. Conclusion\nWe find no error in the trial court\u2019s order admitting the evidence of the Holiday Inn robbery and the trial court\u2019s denial of defendant\u2019s motion to dismiss the first-degree sex offense. However, the trial court\u2019s order requiring defendant\u2019s lifetime registration as a sex offender and lifetime enrollment in SBM based on first-degree sexual offense, which is not an aggravated offense, is reversed and remanded.\nNo error in part, reversed and remanded in part.\nJudges STEELMAN and McCULLOUGH concur.\n. We will use the pseudonym \u201cMary\u201d throughout this opinion to protect the victim\u2019s privacy.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Daniel Snipes Johnson, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DARIUS GREEN\nNo. COA12-1466\nFiled 20 August 2013\n1. Evidence \u2014 prior crimes or bad acts \u2014 robbery\u2014no prejudice\nThe trial court did not err in a robbery with a dangerous weapon case by admitting evidence of a Holiday Inn robbery to which defendant had previously pled guilty. Even assuming, arguendo, that the evidence regarding the similarities between the robberies was insufficient for the trial court to allow the admission of the evidence pursuant to Rule 404(b), defendant failed to show how he was prejudiced by the admission of the evidence.\n2. Sexual Offenses \u2014 first-degree\u2014engaging in a sexual act\u2014 forcing victim to self-penetrate\nThe trial court did not err by denying defendant\u2019s motion to dismiss a first-degree sex offense charge. The act of forcing a victim to self-penetrate constitutes engaging in a sexual act with another person and against the will of the other person. Defendant\u2019s assertion that he did not engage in a sexual act with the victim because he did not make physical contact with her therefore failed.\n3. Satellite-Based Monitoring \u2014 aggravated offense \u2014 elements of the conviction offense\nThe trial court erred in ordering lifetime sex offender registration and lifetime satellite-based monitoring (\u201cSBM\u201d) for defendant. The determination of aggravated offense triggering lifetime registration and SBM is limited to considering only the elements of the conviction offense. As penetration is not a required element of first-degree sexual offense, defendant was not convicted of an aggravated offense.\nAppeal by defendant from judgments entered 3 August 2012 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 22 May 2013.\nAttorney General Roy Cooper, by Special Deputy Attorney General Daniel Snipes Johnson, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant." }, "file_name": "0121-01", "first_page_order": 131, "last_page_order": 139 }