Opinion
No. COA11–984.
2012-05-15
STATE of North Carolina v. Koran BROWN, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for the State. Don Willey for defendant-appellant.
Appeal by defendant from order entered 14 March 2011 by Judge Henry W. Hight, Jr. in Vance County Superior Court. Heard in the Court of Appeals 30 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Elizabeth F. Parsons, for the State. Don Willey for defendant-appellant.
GEER, Judge.
Defendant Koran Brown appeals from the trial court's order requiring him to enroll in satellite-based monitoring (“SBM”). As the State's sole evidence at the SBM hearing regarding whether defendant should be subject to the highest level of supervision and monitoring under N.C. Gen.Stat. § 14–208.40A (2011) was the STATIC–99R's assessment that defendant was a “moderate-high risk” offender, this Court's prior decisions in State v. Kilby, 198 N.C.App. 363, 679 S.E.2d 430 (2009), and State v. Causby, 200 N .C.App. 113, 683 S.E.2d 262 (2009), require that we reverse the decision of the trial court.
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On 7 November 2007, defendant pled guilty to taking indecent liberties with a child and was sentenced to a term of 15 to 18 months imprisonment. Defendant was released from prison on 2 October 2008.
On 14 March 2011, the trial court held a hearing to determine whether defendant should be enrolled in an SBM program. As a result of that hearing, the trial court entered an order, which included findings that: (1) defendant was convicted of a reportable conviction as defined by N.C. Gen.Stat. § 14–208.6(4) (2011); (2) the offense involved the physical, mental, or sexual abuse of a minor; (3) the offense was not an aggravated offense; (4) defendant was not a recidivist or predator; and (5) defendant required the highest level of supervision and monitoring based on the Department of Correction's risk assessment program. Based on those findings, the trial court ordered that defendant be enrolled in an SBM program for five years. Defendant timely appealed from the order.
On appeal, defendant argues that the trial court erred because there was insufficient evidence upon which the court could determine that defendant required the highest level of supervision and monitoring. We agree.
Defendant pled guilty to several reportable offenses as defined by N.C. Gen.Stat. § 14–208.6(4). Where, as here, the reportable offense involves the physical, mental, or sexual abuse of a minor, and the defendant was not convicted of an aggravated offense or determined to be a recidivist or a sexually violent predator, the trial court must order that the Department of Correction (“DOC”) conduct a risk assessment of the defendant. N.C. Gen.Stat. § 14–208.40A(d). If the trial court determines that the defendant requires the “highest possible level of supervision and monitoring” based on DOC's risk assessment, the court is required to order the defendant to enroll in a SBM program for a period of time to be specified by the court. N.C. Gen.Stat. § 14–208.40A(e).
In both Kilby and Causby, this Court reversed an order enrolling the defendant in an SBM program when the trial court found that the defendant required “the highest possible level of supervision and monitoring” notwithstanding DOC's risk assessment that the defendant posed only a “moderate” risk of reoffending. Kilby, 198 N.C.App. at 369, 679 S.E.2d at 434;Causby, 200 N.C.App. at 117, 683 S.E.2d at 265. In both cases, this Court held that the DOC “moderate” rating was not sufficient standing alone to support the SBM order. Kilby, 198 N.C.App. at 369–70, 679 S .E.2d at 434;Causby, 200 N.C.App. at 117, 683 S.E.2d at 265.
Here, as in Kilby and Causby, the sole evidence presented by the State was the STATIC–99R Coding Form indicating that defendant had a score of 5 and was a “moderate-high” risk. Although the State is correct that this Court has held that a finding of “high” risk by the DOC is not a “necessary prerequisite” for the imposition of SBM, State v. Morrow, 200 N .C.App. 123, 132, 683 S.E.2d 754, 761 (2009), aff'd per curiam, 364 N.C. 424, 700 S.E.2d 224 (2010), the Court in Morrow still held that when “ ‘the State presented no evidence which would tend to support a determination of a higher level of risk than the “moderate” rating assigned by the DOC[,]’ then the order requiring defendant to enroll in SBM should be reversed.” Id. (quoting Kilby, 198 N.C.App. at 370, 679 S.E.2d at 434).
Since, in contrast to Morrow but similarly to Kilby and Causby, the State presented no evidence other than the DOC risk assessment, we must conclude that the State's evidence was insufficient to support the trial court's determination that defendant required the highest possible level of supervision and monitoring. Accordingly, we reverse.
Reversed. Judges BRYANT and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).