State v. Thomas, 225 N.C. App. 631 (Feb. 19, 2013)

(1) The trial court erred by concluding that the defendant required the highest level of supervision and monitoring and ordering him to enroll in SBM for ten years when the STATIC-99 risk assessment classified him as a low risk and the trial court’s additional findings were not supported by the evidence. The trial court made additional findings that the victim suffered significant emotional trauma, that the defendant took advantage of a position of trust, and that the defendant had a prior record for a sex offense; it found that these factors “create some concern for the court on the likelihood of recidivism.” The finding regarding trauma was based solely on unsworn statements by the victim’s mother, which were insufficient to support this finding. The defendant’s prior record and likelihood of recidivism was already accounted for in the STATIC-99 and thus did not constitute additional evidence outside of the STATIC-99. However, because the State had presented evidence which could support a determination of a higher risk level, the court remanded for a new SBM hearing. (2) The trial court erred by concluding that indecent liberties was an offense against a minor as defined by G.S. 14-208.6(1m). However, that offense may constitute a sexually violent offense, and can thus support a SBM order.