Aggravated Offenses: Elements Only

I have noted in numerous prior posts (most recently, here) that the statutes governing satellite-based monitoring (SBM) determination hearings (G.S. 14-208.40A and -208.40B) are unclear as to whether the court may, when deciding whether a particular offense was “aggravated,” consider only the elements of the conviction offense, or whether it may also consider the facts underlying the conviction. (An aggravated offense, you’ll recall, is one that includes vaginal, anal, or oral penetration, either by force or threat of serious violence, or with a victim under 12 years old. G.S. 14-208.6(1a).) In State v. Davison, the court of appeals decided on an answer: elements.

In Davison, the defendant pled guilty to attempted first-degree sexual offense and indecent liberties with a child. Though neither offense includes penetration as an element, Davison admitted when entering his plea that digital penetration had occurred. At the SBM determination hearing that followed, the court found that the offenses involved the sexual, physical, and mental abuse of a minor and ordered the Department of Correction to complete its risk assessment. The court also added that it was inclined, based on the defendant’s admission, to find that he had committed an aggravated offense, but it put that determination on hold until the risk assessment was completed. When the risk assessment came back low, the court found that the defendant had committed an aggravated offense and ordered him to enroll in SBM for life.

Davison appealed, arguing that the court failed to follow the statutory procedure in G.S. 14-208.40A. Under that statute (G.S. 14-208.40A(d) to be exact), the court should only reach the point of ordering a risk assessment if it finds that the offense in question involved the physical, mental or sexual abuse of a minor and was not an aggravated offense. The court of appeals said things happened the other way around in Davison’s case: the trial court based its aggravated offense determination on information from the completed risk assessment. I suspect the trial judge was just trying to avoid going down the aggravated offense path if at all possible — a sensible decision given the uncertainty surrounding what a judge could and could not look at to determine whether a particular offense was aggravated. In any event, the appellate court vacated the order and remanded the case for a new determination hearing.

The court of appeals went on to say that even if the statutory procedure had been followed, the offenses in question could not be aggravated offenses within the meaning of G.S. 14-208.6(1a). Under the plain language of that statute and G.S. 14-208.40(a) and -208.40A, the “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.” Having read the statute that way, the court of appeals concluded that even the defendant’s admission to a penetrative act could not support an aggravated offense determination when attempted first-degree sexual offense and indecent liberties were the conviction crimes. Indeed, the court pointed out in Davison, there are only four crimes (first- and second-degree forcible rape and first- and second-degree forcible sexual offense) that can ever be aggravated offenses under the elements-based reading of the law.

Davison brings another welcome dose of clarity to the SBM law, but questions remain. I’m wondering, for example, what effect the decision has on sex offenders subject to lifetime registration under G.S. 14-208.23 for “aggravated offenses” that we now know could never be aggravated under the elements-only rule from Davison. Here’s another one I expect will come up more often now that the universe of aggravated offenses is a lot smaller: What exactly is an offense involving the physical, mental, or sexual abuse of a minor, and what evidence can you use to prove it?