Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
Table of Contents
Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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The trial court erroneously concluded that attempted second-degree rape is an aggravated offense for purposes of lifetime SBM and lifetime sex offender registration. Pursuant to the statute, an aggravated offense requires a sexual act involving an element of penetration. Here, the defendant was convicted of attempted rape, an offense that does not require penetration and thus does not fall within the statutory definition of an aggravated offense.
The State conceded and the court held that the trial court erred by requiring the defendant to submit to lifetime SBM. The trial court imposed SBM based on its determination that the defendant’s conviction for first-degree rape constituted an “aggravated offense” as defined by G.S. 14-208.6(1a). However, this statute became effective on 1 October 2001 and applies only to offenses committed on or after that date. Because the date of the offense in this case was 22 September 2001, the trial court erred by utilizing an inapplicable statutory provision in its determination.
The trial court did not err by requiring the defendant to enroll in lifetime SBM after finding at the bring-back hearing that he committed an aggravated offense, second-degree rape on a physically helpless victim (G.S. 14-27.3(a)(2)). The court followed State v. Oxendine, 206 N.C. App. 205 (2010), and held that second-degree rape was an aggravated offense.
Where the defendant was convicted of first-degree statutory rape the trial court did not err by ordering the defendant to enroll in lifetime SBM upon release from imprisonment. The offense of conviction involved vaginal penetration and force and thus was an aggravated offense.
The trial court erred by ordering lifetime sex offender registration and lifetime SBM because first-degree sexual offense is not an “aggravated offense” within the meaning of the sex offender statutes.
The trial court erred by ordering the defendant to enroll in lifetime satellite-based monitoring based on its determination that second-degree sexual offense was an aggravating offense. Considering the elements of the offense, second-degree sexual offense is not an aggravated offense.
(1) Following prior case law, the court held that taking indecent liberties with a child is not an aggravated offense for purposes of lifetime SBM. (2) Relying on State v. Clark, 211 N.C. App. 60 (Apr. 19, 2011) (first-degree statutory rape involving a victim under 13 is an aggravated offense for purposes of SBM), the court held that statutory rape of a victim who is 13, 14, or 15 is an aggravated offense for purposes of lifetime SBM. (3) Neither statutory sex offense under G.S. 14-27.7A(a) nor sexual activity by a substitute parent under G.S. 14-27.7(a) are aggravated offenses for purposes of SBM.
The trial court erroneously required the defendant to enroll in lifetime SBM on the basis that first-degree sexual offense was an aggravated offense. The court reiterated that first-degree sexual offense is not an aggravated offense. The court remanded for a risk assessment and a new SBM hearing.
The trial court erred by finding that sex offense in a parental role (G.S. 14-27.7(a)) is an aggravated offense.
Citing State v. Clark, 211 N.C. App. 60 (Apr. 19, 2011), the court held that because rape of a child under the age of 13 necessarily involves the use of force or threat of serious violence, the offense is an aggravated offense requiring lifetime SBM. In dicta, it concluded: “Under the test created by this Court . . . there are no offenses that ‘fit within’ the second definition of ‘aggravated offense,’ i.e., an offense that includes ‘engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.’”
Applying an elemental analysis, the court determined that first-degree rape under G.S. 14-27.2(a)(1) fits within the definition of an aggravated offense in G.S. 14-208.6(1a). An aggravated offense includes engaging in a sexual act involving vaginal, anal, or oral penetration with a victim (1) of any age through the use of force or the threat of serious violence or (2) who is less than 12 years old. Rape under G.S. 14-27.2(a)(1) cannot satisfy the second prong because it occurs when a person engages in vaginal intercourse with a child under the age of 13, not 12. However, the offense does fall within the first prong of the aggravated offense definition. Such a rape requires proof that a defendant engaged in vaginal intercourse with the victim. This contrasts with G.S. 14-27.4(a)(1), which allows a defendant to be convicted of first-degree sexual offense on the basis of cunnilingus, an act that does not require penetration. Also, vaginal intercourse with a person under the age of 13 necessarily involves the use of force or the threat of serious violence.
First-degree sexual offense under G.S. 14-27.4(a)(1) and indecent liberties with a minor under G.S. 14-202.1 are not aggravated offenses as defined by G.S. 14-208.6(1a) requiring lifetime satellite-based monitoring.
The trial court erred by finding that first-degree sexual offense with a child under 13 is an aggravated offense for purposes of ordering lifetime satellite-based monitoring (SBM). As the State conceded, when making the relevant determination, the trial court only is to consider the elements of the offense of conviction, not the underlying facts giving rise to the conviction. In a footnote, the court noted that although the record contains several judgments imposing SBM with respect to indecent liberties, courts have held that indecent liberties is not an aggravated offense. The court declined to rule on this issue because it was not raised on appeal.
Following State v. Phillips, 203 N.C. App. 326 (2010), the court held that first-degree sexual offense under G.S. 14-27.4(a)(1) (child victim under 13) is not an aggravated offense for purposes of SBM. To be an aggravated offense, the child must be less than 12 years old; “a child under the age of 13 is not necessarily also a child less than 12 years old.” The court reversed and remanded for consideration of whether the defendant is a sexually violent predator, a recidivist, or whether his conviction involved the physical, mental, or sexual abuse of a minor, and based on the risk assessment performed by the Department of Correction, defendant requires the highest possible level of supervision and monitoring.
Following McCravey, the court granted the State’s petition for writ of certiorari and remanded for entry of an order requiring lifetime SBM enrollment on the basis of the defendant’s second-degree rape conviction, which involved a mentally disabled victim. A concurring opinion agreed that the second-degree rape conviction was an aggravated offense, but not as a direct result of McCravey.
Sexual battery is not an aggravated offense for the purposes of SBM.
Following Singleton and holding that indecent liberties is not an aggravated offense.
Applying the “elements test,” second-degree rape committed by force and against the victim’s will is an aggravated offense triggering lifetime SBM.
Following Davison and holding that when considering whether a pleaded-to offense is an aggravated one for purposes of SBM, the trial court may look only to the elements of the offense, and not at the factual basis for the plea. In this case, the defendant pleaded guilty to felonious child abuse by the commission of a sexual act in violation of G.S. 14-318.4(a2) and taking indecent liberties with a child. Following Singleton and holding that notwithstanding the factual basis for the plea, taking indecent liberties was not an aggravated offense. The court went on to hold that considering the elements only, the trial court erred when it determined that the defendant’s conviction for felonious child abuse by the commission of any sexual act under G.S. 14-318.4(a2) was an aggravated offense.
Following Davison and holding that the pleaded-to offense of indecent liberties was not an aggravated offense under the elements test.
Remanding for failure to properly conduct the SBM determination, as outlined in the court’s opinion. The court also held that when determining whether an offense is an aggravated offense for purposes of SBM, the trial court may look only at the elements of the conviction offense and may not consider the facts supporting the conviction.