An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1217

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Durham County

No. 06 CRS 40556

TERRY WAYNE HARRIS

Appeal by defendant from judgment entered 24 June 2013 by 

Judge Orlando F. Hudson in Durham County Superior Court. Heard 

in the Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Joseph Finarelli, for the State.

Wait Law, P.L.L.C., by John L. Wait, for defendantappellant.

McCULLOUGH, Judge.

Defendant Terry Wayne Harris appeals from an order by the 

trial court, requiring him to enroll in lifetime satellite-based 

monitoring. On appeal, defendant argues that the trial court 

erred by finding that defendant had committed an aggravated 

offense within the meaning of section 14-208.6(1a) of the North 

Carolina General Statutes. Based on the reasons stated herein, 

we affirm the order of the trial court.
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I. Background

On 3 July 2008, defendant was indicted for one count of 

second-degree rape in violation of N.C. Gen. Stat. § 14-27.3(a). 

The indictment alleged that on 30 December 2005, defendant

“unlawfully, willfully, and feloniously did carnally know and 

abuse [the victim], who was at the time mentally disabled and at 

the time the defendant knew [the victim] was mentally disabled.”

On 9 September 2008, defendant pled guilty to the seconddegree rape charge. Based on the trial court’s determination 

that defendant had a prior record level of IV, defendant 

received a minimum sentence of 80 months to a maximum sentence 

of 105 months imprisonment.

In a letter dated 9 March 2013, defendant was sent a notice 

from the North Carolina Department of Correction (“DOC”), 

informing him that he was to appear for a satellite-based 

monitoring (“SBM”) determination hearing scheduled for 15 April 

2013 in Durham County Superior Court. DOC had made an initial 

determination that defendant had been convicted of an aggravated 

offense pursuant to N.C. Gen. Stat. § 14-208.6(1a) and thus, had 

met the criteria set out in N.C. Gen. Stat. § 14-208.40(a)(1), 

requiring lifetime SBM.
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Following a hearing, the trial court entered an order on 24 

June 2013 requiring defendant to enroll in lifetime SBM. The 

trial court found the following:

1. The defendant was convicted of a 

reportable conviction as defined by G.S. 

14-208.6(4), but the sentencing court 

made no determination on whether the 

defendant should be required to enroll in 

[SBM] under Article 27A of Chapter 14 of 

the General Statutes.

2. The Division of Adult Correction has made 

an initial determination that the 

offender falls into at least one of the 

categories requiring [SBM] under G.S. 14-

208.40[.]

. . . .

4. The defendant (a) falls into at least one 

of the categories requiring [SBM] under 

G.S. 14-208.40 in that (iii) the offense 

of which the defendant was convicted was 

an aggravated offense.

Defendant timely appeals the 24 June 2013 order.

II. Standard of Review

In reviewing SBM orders, “[w]e review the trial court’s 

findings of fact to determine whether they are supported by 

competent record evidence, and we review the trial court’s 

conclusions of law for legal accuracy and to ensure that those 

conclusions reflect a correct application of law to the facts 

found.” State v. McCravey, 203 N.C. App. 627, 637, 692 S.E.2d 

409, 418 (2010) (citation omitted). “The trial court’s findings 
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of fact are conclusive on appeal if supported by competent 

evidence, even if the evidence is conflicting.” State v. 

Jarvis, 214 N.C. App. 84, 94, 715 S.E.2d 252, 259 (2011) 

(citation and quotation marks omitted).

III. Discussion

On appeal, defendant argues that his prior conviction of 

second-degree rape under N.C. Gen. Stat. § 14-27.3(a)(2) does 

not constitute an aggravated offense as defined in N.C. Gen. 

Stat. § 14-208.6(1a). Thus, defendant contends that the trial 

court erred by ordering him to enroll in lifetime SBM.

N.C. Gen. Stat. § 14-208.6(1a) defines an “aggravated 

offense” as

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) (2013).

When a trial court determines whether a 

crime constitutes an aggravated offense, it 

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. In other words, the elements of 

the offense must fit within the statutory 

definition of aggravated offense.
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State v. Green, __ N.C. App. __, __, 746 S.E.2d 457, 464 (2013) 

(citation and quotation marks omitted).

In the present case, defendant was convicted of one count 

of second-degree rape based upon an indictment alleging a 

violation of N.C. Gen. Stat. § 14-27.3(a), which governs 

situations in which the victim is mentally disabled and where 

the person engaging in vaginal intercourse “knows or should 

reasonably know” that the victim is mentally disabled. N.C. 

Gen. Stat. § 14-27.3(a) provides as follows:

(a) A person is guilty of rape in the 

second degree if the person engages in 

vaginal intercourse 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 the other person 

is mentally disabled, mentally 

incapacitated, or physically 

helpless.

N.C. Gen. Stat. § 14-27.3(a) (2013) (emphasis added).

In State v. Talbert, 2014 N.C. App. LEXIS 316 (2014), our 

Court addressed this identical issue. In Talbert, the defendant 

was convicted of second-degree rape based upon an indictment 

alleging that the victim was physically helpless at the time of 

the incident in violation of N.C. Gen. Stat. § 14-27.3(a)(2). 
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Id. at __, __ S.E.2d at __. Following a SBM determination 

hearing, the trial court entered an order finding that the 

Talbert defendant had committed an aggravated offense within the 

meaning of N.C. Gen. Stat. § 14-208.6 and ordered the defendant 

to enroll in lifetime SBM. Id. at __, __ S.E.2d at __. The 

Talbert defendant appealed the SBM determination. Our Court 

held that because the elements of second-degree rape under N.C. 

Gen. Stat. § 14-27.3(a)(2) were sufficient to constitute an 

“aggravated offense” for SBM purposes, the trial court’s order 

subjecting defendant to lifetime SBM should be affirmed. Id. at 

__, __ S.E.2d at __.

Because the case sub judice is indistinguishable from 

Talbert, we are bound by the decision of our Court. See In re 

Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)

("Where a panel of the Court of Appeals has decided the same

issue, albeit in a different case, a subsequent panel of the 

same court is bound by that precedent, unless it has been 

overturned by a higher court.").

Accordingly, we hold that the trial court did not err by 

finding that defendant’s second-degree rape conviction under 

N.C. Gen. Stat. § 14-27.3(a)(2) constituted an aggravated 

offense as defined in N.C. Gen. Stat. § 14-208.6(1a) and by 
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requiring defendant to enroll in lifetime SBM. The 24 June 2013 

order of the trial court is affirmed.

Affirmed.

Judges HUNTER, Robert C., and GEER concur.

Report per Rule 30(e).