Revised Sex Offender Flow Chart (March 2013 Edition)

It’s time for another update to my sex offender flow chart. The latest version is available here. As in the prior versions, everything to do with sex offender registration is on the front and everything to do with satellite-based monitoring (SBM) is on the back. Here is a summary of the changes in the latest version.

Findings that may trump a Static-99. It is fairly well established by now that when determining whether a defendant requires the “highest possible level of supervision and monitoring”—and thus requires SBM for a period specified by the court—the trial court is not bound by the results of the Static-99 risk assessment. Rather, the court can make findings in support of its conclusion that monitoring should be required in spite of a less-than-HIGH Static-99 score. State v. Morrow, 200 N.C. App. 123, aff’d, 364 N.C. 424 (2010). The chart is updated to reflect a recent case that sheds new light on the nature of those findings, State v. Thomas, __ N.C. App. __ (Feb. 19, 2012).

In Thomas, the defendant’s Static-99 came back LOW, but the trial judge ordered SBM for 10 years based on his findings (1) that the victim was emotionally traumatized, (2) that the defendant took advantage of a position of trust, and (3) that the defendant had a prior conviction for an old sex crime (a 1968 “misdemeanor rape” from another state). The court of appeals said the first finding was improper because it was based solely on unsworn statements from the victim’s mother, who did not testify under oath and whom the defendant had no opportunity to cross-examine. The court said the third finding was improper because the defendant’s old rape crime was already incorporated into scoring of the Static-99. The trial court had also noted concern based on the defendant’s recurrent sexual deviancy even at his age (over 60). The court of appeals said that, too, was off limits as a finding, because the defendant’s age was already factored into the Static-99 score. To summarize the rules from Thomas: (1) additional SBM findings should be supported by competent evidence; and (2) you can’t trump the Static-99 with additional findings that are “explicitly considered in the Static-99” itself.

Risk assessments for women. Speaking of the Static-99, it is not approved for use on women. But G.S. 14-208.40A and -208.40B say that the court “shall order that [DAC] do a risk assessment of the offender” if he or she has committed an offense that involved the physical, mental, or sexual abuse of a minor. So what assessment should the court order for a woman? Lacking any better ideas, my advice has been for the court to ask Community Corrections to run its Offender Traits Inventory (OTI) on the defendant. It’s not sex-offender specific, but it does measure risk of reoffending (as described here), and so would appear to satisfy the statute. That advice is now incorporated into the chart.

Another offense that can never be aggravated. The new chart adds a citation to State v. Boyett, __ N.C. App. __, 735 S.E.2d 371 (2012), in which the court of appeals held that second-degree sexual offense can never be an aggravated offense. It is now clear, based on Boyett and lots of other cases flagged on the chart, that no sexual offense can ever be an aggravated offense. Aggravated offenses are to be determined based on the elements of the conviction offense. State v. Davison, 201 N.C. App. 354 (2009). Because sexual offense can be committed based on sexual acts that do not necessarily involve penetration (fellatio, analingus, and cunnilingus, namely), it does not categorically satisfy the definition of an aggravated offense under G.S. 14-208.6(1a)—no matter what the court might know about the particular facts of the case in question. The supreme court granted a temporary stay in the case, __ N.C. __, 735 S.E.2d 343 (2012), so I’ll keep an eye on that.

Court martial effective date. A sharp-eyed colleague flagged an error in previous versions of the chart. The section on federal convictions had indicated that all qualifying federal convictions, including those resulting from a court martial, were reportable for defendants convicted or released on or after April 3, 1997. In fact, the provision related to courts martial was not added until October 1, 2001, effective for offenses committed on or after that date. S.L. 2001-373. I apologize for the error and thank John Rubin for catching it.