Opinion
No. COA12–815.
2013-03-5
STATE of North Carolina v. Master Maurice ALSTON.
Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State. Glenn Gerding, for defendant appellant.
Appeal by defendant from judgments and order entered 8 February 2012 by Judge Milton F. Fitch, Jr., in Wilson County Superior Court. Heard in the Court of Appeals 12 December 2012. Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State. Glenn Gerding, for defendant appellant.
McCULLOUGH, Judge.
Master Maurice Alston (“defendant”) appeals from his convictions for breaking or entering and second-degree sexual offense and from the order subjecting him to lifetime satellite-based monitoring (“SBM”) and lifetime sex offender registration (“registration”). For the following reasons, we uphold defendant's convictions but remand for entry of an order concerning SBM and registration consistent with this opinion.
I. Background
Warrants were issued for defendant's arrest on 30 May 2011 for breaking or entering (N.C.Gen.Stat. § 14–54(a)) and second-degree sex offense (N.C.Gen.Stat. § 14–27.5(a)). Thereafter, defendant was arrested. On 10 October 2011, a North Carolina Grand Jury indicted defendant on both charges. The case subsequently came on for jury trial at the 6 February 2012 Criminal Session of Wilson County Superior Court, the Honorable Milton F. Fitch, Jr., presiding.
On 7 February 2012, the jury returned verdicts finding defendant guilty of both felony breaking or entering and second-degree sexual offense. The trial court entered judgments sentencing defendant to a term of 110 months to 141 months for the second-degree sexual offense conviction and to a term of 11 months to 14 months for the breaking or entering conviction. The term imposed for the breaking or entering conviction was suspended on condition that defendant serve 24 months of supervised probation at the expiration of the term imposed for the second-degree sexual offense conviction. Additionally, the trial court found that defendant had been convicted of a sexually violent offense, had been classified as a sexually violent predator, and that the offense of conviction was an aggravated offense. Based on these findings, the trial court ordered that defendant be subject to lifetime SBM and lifetime registration.
Defendant gave oral notice of appeal on 8 February 2012 following his sentencing.
II. Analysis
Defendant raises two issues on appeal: whether the trial court erred by (1) refusing to provide the jury with defendant's statement in response to the jury's request to have the statement during deliberations; and (2) ordering lifetime SBM and lifetime registration based on erroneous findings that he had been classified as a sexually violent predator and that he was convicted of an aggravated offense. We address these issues in order.
Denial of the Jury's Request
Defendant first contends that the trial court erred by failing to exercise its discretion in responding to the jury's request to review evidence during deliberation. We agree.
N.C. Gen.Stat. § 15A–1233(a) governs the review of evidence by the jury during deliberations.
If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.
N.C. Gen.Stat. § 15A–1233(a) (2011) (emphasis added). “Under this rule, the trial court ‘must exercise its discretion in determining whether to permit requested evidence to be read to or examined by the jury....’ “ State v. Starr, 365 N.C. 314, 317, 718 S.E.2d 362, 364–65 (2011) (quoting State v. Ashe, 314 N .C. 28, 34, 331 S.E.2d 652, 656 (1985)).
When a trial court violates this statutory mandate by denying the jury's request to review the transcript “ ‘upon the ground that the trial court has no power to grant the motion in its discretion, the ruling is reviewable,’ “ and the alleged error is preserved by law even when the defendant fails to object. State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378 (1999) (quoting State v. Johnson, 346 N.C. 119, 124, 484 S.E.2d 372, 375–76 (1997)). “[T]here is error when the trial court refuses to exercise its discretion in the erroneous belief that it has no discretion as to the question presented.” Id. (quoting Johnson, 346 N.C. at 124, 484 S.E.2d at 376 (quotation marks omitted)).
Id. at 317,718 S.E.2d at 365. “Where the error is prejudicial, the defendant is entitled to have his motion reconsidered and passed upon as a discretionary matter.” State v.. Lang, 301 N.C. 508, 510, 272 S.E.2d 123, 125 (1980).
In this case, after the jury retired to deliberate, the jury requested to review a statement prepared by police and adopted by defendant during the course of the investigation. This statement was submitted into evidence at trial as State's Exhibit 3. In response to the jury's request, the trial judge stated:
According to the rules that I understand, it is your responsibility ... to remember all of the testimony, all of the contentions and the arguments given by the lawyers to you .... Therefore, according to the way I understand the rules, I will not be able to send what you have requested back.
(Emphasis added.)
We find that this statement indicates that the trial judge did not exercise discretion, but instead denied the jury's request under the mistaken belief that he had no discretion under the rules to allow the jury to review the statement adopted by defendant and admitted into evidence. Accordingly, we find that the trial judge erred.
Nevertheless, defendant is only entitled to the requested relief if the error was prejudicial.
A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable 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. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.
N.C. Gen.Stat. § 15A–1443(a) (2011). In the instant case, defendant contends the error was prejudicial in that the statement was material to the question of his innocence, demonstrated an immediate denial of his guilt, corroborated his in-court testimony, bolstered his credibility, and may have assisted the jury in understanding his account of the events.
After reviewing the record, including the statement requested by the jury and the testimony offered by defendant at trial, we find no reasonable possibility that the jury would have reached a different result had the trial judge not erred. First, we find defendant's testimony at trial comprehensible and straightforward. Thus, the requested statement was unnecessary to aid in the jury's understanding. Second, the requested statement was redundant as it only reiterated testimony offered by defendant at trial, including a description of the events and a denial of the alleged acts. Third, with the exception of defendant's denial, the requested statement is unfavorable to defendant's case.
For these reasons, the trial judge's error was nonprejudicial and defendant received a fair trial.
SBM and Registration
Defendant also argues that the trial court erred in ordering lifetime SBM and lifetime registration. Although we agree, as a preliminary matter, we must address whether the SBM issue is properly before this Court.
“Our Court has held that SBM hearings and proceedings are not criminal actions, but are instead a ‘civil regulatory scheme[.]’ “ State v. Brooks, 204 N.C.App. 193, 194, 693 S.E.2d 204, 206 (2010) (quoting State v. Bare, 197 N.C.App. 461, 472, 677 S.E.2d 518, 527 (2009)). Therefore, “oral notice pursuant to N.C.R.App. P. 4(a)(1) is insufficient to confer jurisdiction on this Court. Instead, a defendant must give notice of appeal pursuant to N.C.R.App. P. 3(a) as is proper ‘in a civil action or special proceeding [.]’ “ Id. at 194–95,693 S.E.2d at 206 (quoting N.C .R.App. P. 3(a)). In this case, defendant only gave oral notice of appeal following sentencing on 8 February 2012. As a result, this Court lacks jurisdiction to determine the SBM issue. See id.; see also State v. Cowan, 207 N.C.App. 192, 195, 700 S .E.2d 239, 241 (2010).
.N.C.R.App. P. 3(a) requires that a party appealing “from a judgment or order of a superior or district court rendered in a civil action or special proceeding ... [file] notice of appeal with the clerk of superior court and [serve] copies thereof upon all other parties .... “ N.C.R.App. P. 3(a) (2013).
Nonetheless, defendant has submitted a petition for writ of certiorari (“PWC”). In response to defendant's PWC, the State concedes that it is within this Court's discretion to allow defendant's PWC and review the merits of the appeal. Furthermore, the State concedes in its brief that the trial court erred in ordering lifetime SBM. Therefore, in the interest of justice, we allow defendant's PWC and reach the merits.
“The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]” N.C.R.App. P. 21(a) (2013).
Below, the trial court ordered lifetime SBM and lifetime registration based on findings that defendant had been classified as a sexually violent predator and that defendant was convicted of an aggravated offense. Defendant contends, and the State concedes, that these findings were in error. We agree.
First, as conceded by the State, defendant was not properly classified as a sexually violent predator. In order to properly classify a defendant as a sexually violent predator, the procedures enumerated in N.C. Gen.Stat. § 14–208.20(a)– (c) must be adhered to. As was the case in State v. Zinkand, 190 N.C.App. 765, 661 S.E.2d 290 (2008), there is no evidence in this case that the procedures were followed below.
“ ‘Sexually violent predator’ means a person who has been convicted of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in sexually violent offenses directed at strangers or at a person with whom a relationship has been established or promoted for the primary purpose of victimization.” N.C. Gen.Stat. § 14–208.6(6) (2011).
Here, there is no indication the State gave notice of its intent to classify defendant as a sexually violent predator, no indication there was an investigation by a board of experts, and no written findings by the trial court as to why defendant was to be classified as a sexually violent predator or a basis for the findings.
Id. at 772, 661 S.E.2d at 294.
Second, although second-degree sexual offense is a reportable conviction and a sexually violent offense, for the purposes of imposing SBM and registration, second-degree sexual offense is not an aggravated offense.
“Aggravated offense” means any 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.
N.C. Gen.Stat. § 14–208.6(1a). Yet, in determining whether a particular offense is an aggravated offense, “the trial court is 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.” State v. Davison, 201 N.C.App. 354, 364, 689 S.E.2d 510, 517 (2009), disc. review denied,364 N .C. 599, 703 S.E.2d 738 (2010).
Pursuant to N.C. Gen.Stat. § 14–27.5,
(a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person:
(1) By force and against the will of the other person; or
(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.
N.C. Gen.Stat. § 14–27.5(a) (2011). “Sexual act” is defined to mean “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's body .... “ N.C. Gen.Stat. § 14–27.1(4) (2011). Furthermore, “[p]roof of a ‘sexual act’ under G.S. 14–27.7 does not require, but may involve, penetration.” State v. Hoover, 89 N.C.App. 199, 208, 365 S.E.2d 920, 926 (1988). Accordingly, because second-degree sexual offense may or may not involve penetration, the elements of second-degree sex offense do not satisfy the standard for aggravated offense in N.C. Gen.Stat. § 14–208.6(1a).
The State concedes that second-degree sexual offense is not an aggravated offense.
Where the trial court's findings that defendant had been classified as a sexually violent predator and was convicted of an aggravated offense are erroneous, the trial court's order subjecting defendant to lifetime SBM and lifetime registration based on those findings cannot stand.
However, despite conceding that the trial court's findings were in error, the State contends that the case should be remanded to have defendant properly evaluated as a sexually violent predator and for a determination of whether SBM should be imposed for a lesser time period pursuant to N.C. Gen.Stat. § 14–208.40A(d) & (e). We disagree. First, the State does not get a second chance to classify defendant as a sexually violent predator where they failed to adhere to the statutory procedure in N.C. Gen.Stat. § 14–208.20. Second, N .C. Gen.Stat. § 14–208.40A(d) & (e) are inapplicable in this case where defendant's offense did not involve the physical, mental, or sexual abuse of a minor. SeeN.C. Gen.Stat. § 14–208.40A(d) (2011).
III. Conclusion
For the reasons discussed above, the trial court's error in refusing to provide defendant's recorded statement to the jury during deliberations was nonprejudicial. Notwithstanding, the trial court did err in finding that defendant had been classified as a sexually violent predator and that defendant was convicted of an aggravated offense. As a result, the order subjecting defendant to lifetime SBM and lifetime registration is vacated and the matter is remanded to the trial court for entry of orders consistent with this opinion.
No error in part; vacated and remanded in part. Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).