{ "id": 4171805, "name": "STATE OF NORTH CAROLINA v. JOSEPH KEVIN CAUSBY, Defendant", "name_abbreviation": "State v. Causby", "decision_date": "2009-09-15", "docket_number": "No. COA08-1533", "first_page": "113", "last_page": "118", "citations": [ { "type": "official", "cite": "200 N.C. App. 113" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 14-208.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "pin_cites": [ { "page": "(4)" }, { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 10, "opinion_index": 0 }, { "cite": "679 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 2009, "pin_cites": [ { "page": "432-33" }, { "page": "433" }, { "page": "434" }, { "page": "434" }, { "page": "434" }, { "page": "434" }, { "page": "434" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 459, "char_count": 11902, "ocr_confidence": 0.765, "pagerank": { "raw": 9.343082621927568e-08, "percentile": 0.5137811123351207 }, "sha256": "fb748adbb161e80952ea9097c683778d24bfe74b9e87a2d2f5a20bb3df43ceb5", "simhash": "1:03aff720d20a1df4", "word_count": 1882 }, "last_updated": "2023-07-14T15:34:12.558956+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOSEPH KEVIN CAUSBY, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Joseph Kevin Causby appeals from the trial court\u2019s order enrolling him in a satellite-based monitoring (\u201cSBM\u201d) program for 36 months upon completion of his sentence and any term of post-release supervision. This Court\u2019s recent decision in State v. Kilby, 198 N.C. App. -, 679 S.E.2d 430 (2009), controls and requires the conclusion, in this case, that the trial court\u2019s determination that defendant requires the highest level of supervision and monitoring\u2014 notwithstanding the assessment by the Department of Correction (\u201cDOC\u201d) that defendant was a moderate risk for reoffending \u2014 -is unsupported by the evidence. We, therefore, reverse.\nFacts\nDefendant was indicted on 4 February 2008 for one count of taking indecent liberties with a child. Defendant pled guilty to the charge on 30 April 2008. The plea arrangement provided that sentencing would be continued to 28 July 2008 and that the State would recommend a probationary sentence. Sentencing actually took place on 30 July 2008. The trial court found as mitigating factors that defendant had accepted responsibility for his criminal conduct and that defendant had a support system in the community. The trial court determined that a mitigated sentence was justified and sentenced defendant in the mitigated range to a term of 15 to 18 months imprisonment.\nOn the following day, 31 July 2008, the trial court conducted a hearing to determine whether defendant should be enrolled in an SBM program. At that hearing, the State presented the testimony of Probation Parole Officer Brian Branch, who had performed the DOC Risk Assessment that was set out in the Static-99 Form, which was also submitted to the trial court. Officer Branch testified that out of the three recidivism risk levels \u2014 low, moderate, and high \u2014 defendant had a \u201cmoderate\u201d risk assessment. Although the State also moved the admission of a written statement of a nurse practitioner describing the offense that resulted in the indecent liberties charge, the trial court excluded the statement based on defendant\u2019s objection. Defendant\u2019s counsel referred the trial court to a Sentencing Plan admitted in the previous day\u2019s sentencing hearing that reported the results of a sex offender-specific evaluation, which concluded that defendant \u201cis a moderately-low risk for reoffense.\u201d\nThe trial court entered an order on AOC form AOC-CR-615, relying upon only the typewritten findings already set out in the form, including the findings (1) that defendant had committed an offense involving the physical, mental, or sexual abuse of a minor and (2) that defendant \u201crequires the highest possible level of supervision and monitoring based on the Department of Correction\u2019s risk assessment program.\u201d The trial court ordered that defendant be enrolled in an SBM program for 36 months following completion of defendant\u2019s sentence and any term of post-release supervision. Defendant timely appealed to this Court from the trial court\u2019s 31 July 2008 order.\nDiscussion\nThis Court\u2019s recent decision in Kilby, 198 N.C. App. at -, 679 S.E.2d at 432-33, involved N.C. Gen. Stat..\u00a7 14-208.40B (2007), the SBM statute that applies when an offender was convicted of a reportable offense in the past, but the trial court had not previously determined whether the offender should be required to enroll in an SBM program. This case, however, involves N.C. Gen. Stat. \u00a7 14-208.40A, the statute applicable when the district attorney has requested that the trial court consider SBM during sentencing. Nevertheless, the analysis in Kilby is equally applicable here.\nAs this Court recognized in Kilby, a trial court\u2019s SBM determination involves two phases: a \u201cqualification\u201d phase and a \u201crisk assessment\u201d phase. Id. at \u2014, 679 S.E.2d at 433. In the qualification.phase, if a defendant was convicted of a reportable offense as defined by N.C. Gen. Stat. \u00a7 14-208.6(4) (2007), then the \u201cdistrict attorney shall present to the court any evidence\u201d that the defendant falls into one of five categories: \u201c(i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20, (ii) the offender is a recidivist, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense was a violation of G.S. 14-27.2A or G.S. 14-27.4A, or (v) the offense involved the physical, mental, or sexual abuse of a minor.\u201d N.C. Gen. Stat. \u00a7 14-208.40A(a). Upon receipt of the evidence from the State and any contrary evidence from the offender, the trial court is required to determine \u201cwhether the offender\u2019s conviction places the offender\u201d in one of the five categories and to \u201cmake a finding of fact of that determination,\u201d specifying the category into which the offender falls. N.C. Gen. Stat. \u00a7 14-208.40A(b).\nIn this case, there is no dispute that defendant pled guilty to a reportable conviction as. defined by N.C. Gen. Stat. \u00a7 14-208.6(4). The trial court, based on the State\u2019s evidence, further found that defendant\u2019s offense involved the physical, mental, or sexual abuse of a minor. The case then moved to the risk assessment phase.\nN.C. Gen. Stat. \u00a7 14-208.40A(d) provides that \u201c[i]f the court finds that the offender committed an offense that involved the physical, mental, or sexual abuse of a minor, that the offense is not an aggravated offense or a violation of G.S. 14-27.2A or G.S. 14-27.4A and the offender is not a recidivist, the court shall order that the Department [of Correction] do a risk assessment of the offender.\u201d Upon receipt of that risk assessment, \u201cthe court shall determine whether, based on the Department\u2019s risk assessment, the offender requires the highest possible level of supervision and monitoring.\u201d N.C. Gen. Stat. \u00a7 14-208.40A(e). If, as occurred in this case, the trial court determines that the offender does require the highest possible level of supervision and monitoring, then the trial court \u201cshall order the offender to enroll in a satellite-based monitoring program for a period of time to be specified by the court.\u201d Id.\nWith respect to the risk assessment phase, in Kilby, as in this case, the DOC risk assessment concluded that defendant posed a \u201cmoderate\u201d risk of reoffending. 198 N.C. App. at -, 679 S.E.2d at 434. The trial court in that case, using the same AOC form used here, nonetheless found that the defendant \u2018requires the highest possible level of supervision and monitoring.\u2019 \u201d Id. at -, 679 S.E.2d at 434. The Kilby trial court, like the trial court here, made no further findings of fact to support this determination.\nThis Court first held:\nAlthough we cannot discern any direct correlation between the designation of low, moderate or high risk by the DOC assessment and the terminology of N.C. Gen. Stat. \u00a7 14-208.40B(c) which directs the determination of whether an offender may \u201crequire the highest possible level of supervision and monitoring,\u201d N.C. Gen. Stat. \u00a7 14-208.40B(c), the trial court made no findings of fact which could justify the conclusion that \u201cdefendant requires the highest possible level of supervision and monitoring.\u201d The trial court erred by concluding that \u201cdefendant requires the highest possible level of supervision and monitoring.\u201d The findings of fact are insufficient to support the trial court\u2019s conclusion that \u201cdefendant requires the highest possible level of supervision and monitoring\u201d based upon a \u201cmoderate\u201d risk assessment from the DOC.\nId. at -, 679 S.E.2d at 434.\nThe Kilby panel then addressed whether the case should be remanded for further findings of fact:\nThe State did not present evidence which could support a finding that \u201cdefendant requires the highest possible level of supervision and monitoring.\u201d The DOC assessment of defendant rated him as a moderate risk. The State\u2019s other evidence indicated that defendant was fully cooperating with his post release supervision, which might support a finding of a lower risk level, but not a higher one. As no evidence was presented which tends to indicate that defendant poses a greater than \u201cmoderate\u201d risk or which would demonstrate that \u201cdefendant requires the highest possible level of supervision and monitoring[,]\u201d we need not remand this matter to the trial court for additional findings of fact as requested by the State. Consequently, we reverse the trial court\u2019s order.\nId. at -, 679 S.E.2d at 434.\nIn this case, the trial court\u2019s findings of fact were identical to the findings in Kilby. Since the DOC determined in this case, as in Kilby, that defendant was a moderate risk, Kilby requires the conclusion that the trial court\u2019s findings of fact are insufficient to support the determination that defendant requires the highest possible level of supervision and monitoring. With respect to the sufficiency of the evidence, the only evidence presented by the State was the DOC assessment of \u201cmoderate\u201d risk and the officer\u2019s brief explanation of how that assessment was reached. Thus, the State only presented evidence that defendant was a moderate risk and presented no evidence that defendant needed the highest possible level of supervision and monitoring.\nImplicitly acknowledging that the State\u2019s evidence at the hearing was insufficient to support the trial court\u2019s ultimate determination, the State, on appeal, points to the Sentencing Plan relied upon by defendant at the hearing. Although it is not entirely clear that this Plan was actually admitted into evidence at the SBM hearing, the Plan reported \u201cthat [defendant] is a moderately-low risk for re-offense.\u201d\nThe State, however, after noting that assessment, points to the portion of the report where the doctor making the assessment of moderately-low risk also made various recommendations related to sentencing. The State asserts on appeal that those recommendations \u201care at odds with the assessment of moderately-low risk\u201d and \u201care at odds with the DOC Risk Assessment.\u201d A review of those recommendations does not immediately lead to that conclusion, and, in any event, the State presented no evidence in the trial court to support the assertions made in its brief about defendant\u2019s degree of risk. The State cannot support a trial court\u2019s order by proffering its own \u201cexpert\u201d opinion on appeal, unsupported by testimony or documentary evidence, about the meaning of a doctor\u2019s recommendations. Moreover, the State cites no authority that would permit the trial court to disregard the DOC\u2019s risk assessment in the manner urged by the State on appeal.\nWe, therefore, believe that Kilby controls. The State presented no evidence supporting the trial court\u2019s determination that defendant requires the highest possible level of supervision and monitoring. \u201cAs the DOC assessed defendant herein as a \u2018moderate\u2019 risk and the State presented no evidence to support findings of a higher level of risk or to support the requirement for \u2018the highest possible level of supervision and monitoring[,]\u2019 the trial court\u2019s order is reversed.\u201d Id. at -, 679 S.E.2d at 434. Since we have reversed the trial court\u2019s order, we need not address defendant\u2019s remaining arguments.\nReversed.\nJudges BRYANT and STEPHENS concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for the State.", "Carol Ann Bauer for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOSEPH KEVIN CAUSBY, Defendant\nNo. COA08-1533\n(Filed 15 September 2009)\nSexual Offenders\u2014 satellite-based monitoring \u2014 level of supervision \u2014 risk assessment\nThe trial court erred by determining that defendant required the highest level of supervision and monitoring after his guilty plea to the charge of taking indecent liberties with a child because the findings of fact were insufficient to support this determination and the State only presented evidence that defendant was a moderate risk.\nAppeal by defendant from order entered 31 July 2008 by Judge Laura J. Bridges in Rutherford County Superior Court. Heard in the Court of Appeals 23 April 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for the State.\nCarol Ann Bauer for defendant-appellant." }, "file_name": "0113-01", "first_page_order": 139, "last_page_order": 144 }