The court of appeals recently decided a few cases involving satellite-based monitoring (SBM) of sex offenders, so it seemed a good time to write a blog post about it and to update my sex offender registration and monitoring flow chart.
In State v. Clark, the defendant was convicted of first-degree rape under G.S. 14-27.2(a)(1)—that is, statutory rape of a victim under the age of 13 by a defendant who is at least 12 years old and at least four years older than the victim. The trial court determined that the rape was an “aggravated offense” under G.S. 14-208.6(1a) and ordered him to enroll in SBM for life under G.S. 14-208.40A(c).
An aggravated offense, you’ll recall, is a criminal offense that involves
(1) Vaginal, anal, or oral penetration
(a) With a victim of any age through the use of force or the threat of serious violence, or
(b) With a victim who is less than 12 years old.
We have ample case law holding that when determining whether an offense fits within the statutory definition of an aggravated offense, the court may consider only the elements of the offense of conviction and may not consider the underlying factual scenario giving rise to the conviction. E.g., State v. Davison, __ N.C. App. __, 689 S.E.2d 510 (2009) (indecent liberties with a child is not an aggravated offense). Even first-degree statutory sexual offense is not aggravated because the elements of that crime only require that the child be under age 13 and “a child under the age of 13 is not necessarily also a child less than 12 years old.” State v. Treadway, __ N.C. App. __, 702 S.E.2d 335 (2010).
The defendant in Clark seized upon the Treadway court’s logic and argued that a first-degree statutory rape should be no different from a statutory sexual offense—you cannot know, looking at the elements alone, whether the victim might have been 12 years old, and thus outside the definition of an aggravated offense. The court of appeals agreed that the trial court’s aggravated offense determination could not be upheld on the “child victim” prong of the aggravated offense definition (that’s prong (2)(b) as I set it out above).
But the court went on to add a new wrinkle to the analysis. Because statutory rape necessarily involves the act of vaginal intercourse with a person under the age of 13, the court concluded that it also “necessarily involves the use of force or the threat of serious violence”—and thus fits within the “violent conduct” prong (prong (2)(a) in my formulation) of the of the aggravated offense definition. The court supported that conclusion with a citation to State v. Holden, 338 N.C. 394 (1994), a case in which the supreme court, when considering whether a person’s prior second-degree rape conviction could be deemed a violent felony for the purpose of establishing an aggravating circumstance in a capital sentencing, explicitly rejected the notion that any rape is “non-violent.” So, even if Clark’s crime had been against the hypothetical 12-year-old victim, it would be proper to deem it aggravated, and the trial court thus did not err by ordering SBM for life. On Tuesday of this week—two weeks after Clark was decided—the court of appeals reached the same conclusion in State v. Brown.
After Clark, we can say that any first-degree rape—statutory or forcible—is an aggravated offense for SBM purposes. Add to that the rules from State v. McCravey, __ N.C. App. __, 692 S.E.2d 409 (2010) (second-degree rape based on force under G.S. 14-27.3(a)(1) is an aggravated offense), and State v. Oxendine, __ N.C. App. __, 696 S.E.2d 850 (2010) (Stroud, J., concurring) (second-degree rape of a mentally disabled victim is an aggravated offense), and it appears that any first- or second-degree rape is an aggravated offense (assuming the crime falls within the applicable effective date provisions for SBM). By contrast, attempts to commit those crimes are never aggravated because they fail to satisfy the “penetration” prong of the definition. Davison, 689 S.E.2d at 515–16 (2009). And the sexual offense analogues of rape are never aggravated because you cannot tell, looking at the elements of the offense alone, whether the sexual act in question actually involved penetration (something the court noted in footnote 4 in Clark), so they also fail to satisfy prong (1).
Another SBM case decided in this week, State v. Green, dealt with offenses involving the physical, mental, or sexual abuse of a minor. I’ll write about it in a subsequent post.