With the General Assembly done for the year, it’s time to post an updated sex offender registration and monitoring flow chart. A major reorganization of the sex crimes in Chapter 14 necessitated more changes than usual. Continue reading
Tag Archives: sex offender flow chart
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.
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.
The latest version of the chart is available here—but given the SORNA compliance legislation pending in the General Assembly (which I wrote about last week), I wouldn’t go laminating it or anything.