{ "id": 4132032, "name": "STATE OF NORTH CAROLINA v. FRANKLIN ROOSEVELT THOMAS, SR.", "name_abbreviation": "State v. Thomas", "decision_date": "2013-02-19", "docket_number": "No. COA12-667", "first_page": "631", "last_page": "635", "citations": [ { "type": "official", "cite": "225 N.C. App. 631" } ], "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": 5, "pin_cites": [ { "page": "(4)", "parenthetical": "a" }, { "page": "(lm)" }, { "page": "(lm)" }, { "page": "(4)(a)" }, { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "710 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "715 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "259" }, { "page": "259" } ], "opinion_index": 0 }, { "cite": "700 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152446 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0424-01" ] }, { "cite": "683 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2009, "pin_cites": [ { "page": "761" }, { "page": "761" }, { "page": "761" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4171957 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "132" }, { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc-app/200/0123-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "669 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "294", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150837 ], "year": 2008, "pin_cites": [ { "page": "632", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0628-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 491, "char_count": 10945, "ocr_confidence": 0.753, "pagerank": { "raw": 6.119645932871841e-08, "percentile": 0.3814067924423393 }, "sha256": "5ca11728d7fb0d7214eb1212aa761c620d8688f5a73eca1d2a5bbfef4738eab0", "simhash": "1:a3efc628530f0cd7", "word_count": 1741 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FRANKLIN ROOSEVELT THOMAS, SR." ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere the trial court\u2019s order for satellite-based monitoring (SBM) of defendant was based upon improper findings of fact, this matter is remanded for a new SBM hearing.\nI. Factual and Procedural History\nFranklin Roosevelt Thomas, Sr., (defendant) was either dating or married to the mother of A.B., age 11 at the time of trial. A.B. disclosed that defendant had \u201ctouch[ed] her inappropriately.\u201d Defendant was indicted on two counts of taking indecent liberties with a child. Pursuant to a plea agreement, defendant pled guilty to one count of indecent liberties. The trial court sentenced defendant to an active term of imprisonment of 16 to 20 months.\nThe trial court then conducted a hearing pursuant to N.C. Gen. Stat. \u00a7 14-208.40A for purposes of determining whether post-release satellite-based monitoring (SBM) was appropriate. The trial court found that defendant had been convicted of an offense against a minor and a sexually violent offense. The trial court found that defendant had not been classified as a sexually violent predator, was not a recidivist, and that the conviction offense was not an aggravated offense.\nPrior to the hearing, a STATIC-99 risk assessment had been performed. Defendant received negative three points for being sixty years of age or older. He received one point for having a 1963 assault conviction, one point for having a 1968 conviction for \u201cRAPE MISD\u201d in another state, and one point for having four or more prior sentencing dates. The total points on the STATIC-99 risk assessment was zero, indicating a low risk of reoffending.\nThe trial court made \u201cadditional findings\u201d that A.B. was traumatized, that defendant took advantage of a position of trust, and that defendant had a prior record for a sex offense. The court stated that these factors \u201ccreate some concern for the court on the likelihood of recidivism.\u201d The trial court concluded that defendant required the highest possible level of supervision'and monitoring, and ordered that defendant enroll in SBM for 10 years following his release from prison.\nDefendant appeals.\nII. Standard of Review\nIn reviewing a trial judge\u2019s findings of fact, we are \u201cstrictly limited to determining whether the trial judge\u2019s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge\u2019s ultimate conclusions of law.\u201d\nState v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).\n[0]ur review requires us to consider whether evidence was presented which could support findings of fact leading to a conclusion that \u201cthe defendant requires the highest possible level of supervision and monitoring.\u201d N.C. Gen.Stat. \u00a7 14-208.40B(c). If \u201cthe State presented no evidence which would tend to support a determination of a higher level of risk than the \u201cmoderate\u201d rating assigned by the DOC[,]\u201d then the order requiring defendant to enroll in SBM should be reversed. Kilby,_N.C. App. at_, 679 S.E.2d at 434. However, if evidence supporting the trial court\u2019s determination of a higher level of risk is \u201cpresented, it [is] . . . proper to remand this case to the trial court to consider the evidence and make additional findings [.]\u201d Id.\nState v. Morrow, 200 N.C. App. 123, 132, 683 S.E.2d 754, 761 (2009), aff\u2019d per curiam, 364 N.C. 424, 700 S.E.2d 224 (2010).\nIII. Consideration of Factors at SBM Hearing\nIn his first argument on appeal, defendant contends that the trial court erred in determining that he required the highest possible level of supervision and monitoring upon his release from prison when the STATIC-99 risk assessment classified him as a low risk for reoffending, and that the trial court\u2019s \u201cadditional findings\u201d were not supported by the evidence. We agree.\nThe North Carolina Department of Correction adopted the STATIC-99 to assess risk of reoffending among sex offenders. The STATIC-99 is an \u201cactuarial instrument designed to estimate the probability of sexual and violent recidivism among male offenders who have already been convicted of at least one sexual offense against a child or non-consenting adult.\u201d Id. at 125 n.3, 683 S.E.2d at 757 n.3.\nIn the instant case, the STATIC-99 showed a total score of zero, indicating a low risk of reoffending. We have held that where an offender is determined to pose only a low or moderate risk of reoffending, the State must present additional evidence to support a determination that the offender requires the highest possible level of supervision and monitoring. Id. at 132, 683 S.E.2d at 761. These additional findings must be supported by \u201ccompetent record evidence[,]\u201d State v. Jarvis,_N.C. App._, _, 715 S.E.2d 252, 259 (2011), and must support the trial court\u2019s ultimate conclusion of law.\nIn the instant case, the trial court made an additional finding of fact that \u201c[A.B.] is suffering significant emotional trauma[.]\u201d This finding was based solely on unsworn statements of [A.B.]\u2019s mother. In its brief, the State conceded that \u201cthe statements of A.B.\u2019s mother at the time Defendant was sentenced were not themselves competent evidence. A.B.\u2019s mother did not testify under oath and the trial court did not give Defendant. . . the opportunity to cross-examine [her].\u201d\nBecause these unsworn statements were neither stipulated nor assented to by defendant, this evidence was not sufficient to support the trial court\u2019s finding. See State v. Green,_N.C. App._,_, 710 S.E.2d 292, 296 (2011).\nThe trial court also found that defendant had \u201ca prior record although extremely old of another sex offense.\u201d However, the STATIC-99 assessment had already taken into account defendant\u2019s prior offense. The purpose of allowing the trial court to make additional findings is to permit the trial court to consider factors not part of the STATIC-99 assessment. In Morrow, we held that, where an offender is determined to pose only a low or moderate risk of reoffending, the State must offer additional evidence, and the trial court make additional findings, in .order to justify a maximum SBM sentence. See Morrow, 200 N.C. App. at 132, 683 S.E.2d at 761; Jarvis, _ N.C. App. at _, 715 S.E.2d at 259. To allow these \u201cadditional findings\u201d to include matters already addressed in the STATIC-99 assessment would obviate the utility of the assessment. We hold that these \u201cadditional findings\u201d cannot be based upon factors explicitly considered in the STATIC-99 assessment.\nTh\u00e9 trial court further found that the \u201creccurrance [sic] of this Defendant\u2019s sexual [sic] deviant [sic] behavior, many years after the prior conviction and the present age of Defendant create some concern for the court on the likelihood of recidivism.\u201d The STATIC-99 took defendant\u2019s age into account, and the assessment determined that defendant\u2019s age reduced the likelihood of recidivism. Since this factor had already been considered in the STATIC-99 assessment, it could not constitute an \u201cadditional finding.\u201d\nThe trial court considered improper factors in making its determination that defendant required the highest possible level of supervision. Nonetheless, the State did present evidence which could tend to support a determination of a higher level of risk. The SBM order is therefore vacated and this matter is remanded to the trial court for a new SBM hearing.\nIV. \u201cOffense Against a Minor\u201d\nIn his second argument, defendant contends that the trial court erred in concluding that he had committed an \u201coffense against a minor\u201d as defined by statute, thus subjecting him to SBM. We agree.\nA person cannot be subjected to SBM unless that person has a \u201creportable conviction.\u201d N.C. Gen. Stat. \u00a7 14-208.40A(a) (2011); N.C. Gen. Stat. \u00a7 14-208.40B(a). A reportable conviction can be \u201ca final conviction for an offense against a minor.\u201d N.C. Gen. Stat. \u00a7 14-208.6(4) (a). An \u201coffense against a minor\u201d is defined as:\nany of-the following offenses if the offense is committed against a minor, and the person committing the offense is not the minor\u2019s parent: G.S. 14-39 (kidnapping), G.S. 14-41 (abduction of children), and G.S. 14-43.3 (felonious restraint). The term also includes the following if the person convicted of the following is not the minor\u2019s parent: a solicitation or conspiracy to commit any of these offenses; aiding and abetting any of these offenses.\nN.C. Gen. Stat. \u00a7 14-208.6(lm).\nIn the instant case, the trial court found that defendant had been convicted of an \u201coffense against a minor under G.S. 14-208.6(lm).\u201d Defendant was not convicted of kidnapping, child abduction, or felonious restraint, and thus did not commit an offense against a minor as set forth in N.C. Gen. Stat. \u00a7 14-208.6(lm). The State concedes that the trial court erred in concluding that defendant\u2019s conviction for taking indecent liberties was an offense against a minor.\nWe note, however, that an offense against a minor is not the only basis for a reportable conviction. A \u201csexually violent offense\u201d is likewise a reportable conviction. N.C. Gen. Stat. \u00a7 14-208.6(4)(a). Taking indecent liberties with a child is a sexually violent offense under the statute, N.C. Gen. Stat. \u00a7 14-208.6(5), and is therefore grounds for imposition of SBM, assuming all other requirements are met. Upon remand, the trial court may not hold that defendant\u2019s conviction was an offense against a minor.\nVACATED AND REMANDED.\nJudges STEPHENS and McCULLOUGH concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Joseph Finarelli, Special Deputy Attorney General, for the State.", "Staples S. Hughes, Appellate Defender, by Andrew DeSimone, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FRANKLIN ROOSEVELT THOMAS, SR.\nNo. COA12-667\nFiled 19 February 2013\n1. Satellite-Based Monitoring \u2014 highest possible level of supervision \u2014 low risk for offending \u2014 additional findings not supported\nThe trial court erred in a satellite-based monitoring case by determining that defendant required the highest possible level of supervision and monitoring upon his release from prison for a sexual offense. The STATIC-99 risk assessment classified him as a low risk for reoffending and the trial court\u2019s additional findings were not supported by the evidence.\n2. Satellite-Based Monitoring \u2014 indecent liberties \u2014 offense against a minor \u2014 sexually violent offense\nThe trial court erred in a satellite-based monitoring (SBM) case by concluding that defendant had committed an \u201coffense against a minor\u201d as defined by statute, thus subjecting him to SBM. Taking indecent liberties is not an offense against a minor; however, it is a sexually violent offense under N.C.G.S. \u00a7 14-208.6(5), and is therefore grounds for imposition of SBM, assuming all other requirements are met.\nAppeal by defendant from order entered 14 February 2012 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 9 January 2013.\nRoy Cooper, Attorney General, by Joseph Finarelli, Special Deputy Attorney General, for the State.\nStaples S. Hughes, Appellate Defender, by Andrew DeSimone, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0631-01", "first_page_order": 641, "last_page_order": 645 }