Lifetime SBM without Lifetime Registration

The trial court’s order regarding sex offender registration and satellite-based monitoring (SBM) in State v. Johnson was wrong in part. But also right in part. But ultimately wrong. Robert Johnson was convicted of sexual offense with a child by an adult offender (under G.S. 14-27.4A at the time of his offense, now codified in G.S. 14-27.28) and sexual offense by a substitute parent. Based on those convictions, the trial court ordered him to register as a sex offender for life and enroll in SBM for life. On appeal, the defendant argued that the lifetime registration order was erroneous. The court of appeals agreed. The trial court based its lifetime registration order on its finding that the defendant had been convicted of an “aggravated offense.” An aggravated offense, you may recall, is defined as one that includes “engaging in a sexual act involving vaginal, anal, or oral penetration,” either through the use of force or the threat of serious violence, or with a victim who is less than 12 years old. G.S. 14-208.6(1a). Factually, the defendant’s crimes appeared to fit the definition of an aggravated offense. He forced his wife’s 10-year-old son to perform fellatio on him. However, as discussed on this blog many times since 2009 (the first time was here), the determination of whether an offense is aggravated is based only on the elements of the defendant’s conviction offense, not on the facts underlying that conviction. State v. Davidson, 201 N.C. App. 354 (2009). By the elements, sexual offense crimes [...]