SBM Update: First-Degree Statutory Rape Is an Aggravated Offense

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 (2) (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 [...]