Opinion
No. COA12–1440.
2013-06-18
STATE of North Carolina v. Marcus MOORE.
Attorney General Roy Cooper, by Assistant Attorney General Peter A. Regulski, for the State. Mary McCullers Reece, for defendant.
Appeal by defendant from judgment entered 28 June 2012 by Judge William Osmond Smith in Durham County Superior Court. Heard in the Court of Appeals 3 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Peter A. Regulski, for the State. Mary McCullers Reece, for defendant.
ELMORE, Judge.
Defendant pled guilty on 28 June 2012 to indecent liberties with a child. The trial court sentenced defendant to imprisonment for thirteen to sixteen months. The trial court separately ordered defendant to register as a sex offender for a period of thirty years and to enroll in satellite-based monitoring (SBM) for a period of ten years based upon a conclusion that he requires the highest level of supervision and monitoring. Defendant appeals from the order requiring him to enroll in SBM.
Appellate review of an SBM order consists of determining whether the findings of fact are supported by evidence and whether the conclusions of law are correct applications of the law to the facts found. State v. Kilby, 198 N.C.App. 363, 367, 679 S.E.2d 430, 432 (2009). Accordingly, we review a conclusion that the defendant requires the highest level of supervision and monitoring for whether it is a correct application of the law to the facts found by the trial court. Id.
In the findings at bar, the trial court determined that defendant has been convicted of a sexually violent offense under N.C. Gen.Stat. § 14–208.6(5) and has not been classified as a sexually violent predator. The trial court further determined that defendant is not a recidivist and that the offense is not an aggravated offense under N.C. Gen.Stat. § 14–208.6(1a) but it did involve the physical, mental or sexual abuse of a minor. The trial court noted defendant fell within the risk category of low-moderate as assessed by the Department of Correction.
As additional findings on a separate page, the trial court incorporated by reference (1) the psychological evaluation of defendant prepared by a licensed psychologist who examined defendant and opined that defendant “would be found to be a low risk for future allegations of sexually defiant behavior”; and (2) a domestic violence protective order finding defendant had threatened to kill everyone in the complainant's household, including the complainant's then-unborn child, who was ultimately the victim of the sexual assault by defendant at bar. As additional specific findings, the trial court declared that: (1) the victim was twelve weeks old at the time of the offense and the natural daughter of defendant, (2) defendant had made previous comments with regard to controlling his sexual urges, (3) defendant's history and mental capacity support a conclusion that SBM is necessary, and (4) defendant has diminished capacity for impulse control.
Defendant contends the trial court's conclusion that he requires the highest level of supervision and monitoring is not supported by the trial court's findings of fact. We disagree.
Generally an assessment of a moderate risk of recidivism is insufficient, standing alone, to support a conclusion that a defendant requires the highest possible level of supervision and monitoring. Kilby, 198 N.C.App. at 369–70, 679 S.E.2d at 434. If, however, the trial court makes additional findings regarding the need for heightened supervision, the evidence supports those findings, and the findings support the conclusion, then the conclusion may be upheld even though the defendant has a moderate or moderate-low risk of recidivism. State v. Green, 211 N.C.App. 599, ––––, 710 S.E.2d 292, 294 (2011).
In Green, the defendant's Static 99 score placed his risk of recidivism in the moderate-low range. Id. at ––––, 710 S.E.2d at 293. Notwithstanding, we affirmed the trial court's determination that the defendant required the highest possible level of supervision based upon findings of fact (1) that the victims were very young and (2) that the defendant did not receive any sex offender treatment. Id. at ––––, 710 S.E.2d at 296. Here, the trial court found that the victim was very young at the age of twelve weeks. The trial court also incorporated by reference the report of the psychologist which indicated defendant has not undergone any sex offender treatment and that defendant has a mood disorder which is characterized in part by impulsivity. Further, as did the defendant in Green, defendant here had a prior record of domestic violence. We think these facts support the trial court's conclusion that the highest level of supervision is required for defendant.
We hold the findings are supported by evidence and that the findings support the trial court's conclusions and order. The order is affirmed.
Affirmed. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).