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 [...]