No. COA12-667 TWENTY-SIXTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

)

v.)From Mecklenburg

)

FRANKLIN ROOSEVELT THOMAS, SR.)

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BRIEF OF DEFENDANT-APPELLANT

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SUBJECT INDEX

TABLE OF AUTHORITIES...... iii

ISSUES PRESENTED...... 1

STATEMENT OF THE CASE...... 2

STATEMENT OF GROUNDS FOR APPELLATE JURISDICTION 2

STATEMENT OF THE FACTS...... 2

STANDARD OF REVIEW...... 4

ARGUMENT...... 5

I.THE TRIAL COURT ERRED BY DETERMINING THAT MR. THOMAS REQUIRED THE HIGHEST POSSIBLE LEVEL OF SUPERVISION AND MONITORING WHEN THE RISK ASSESSMENT CLASSIFIED HIM AS ONLY A LOW RISK FOR REOFFENDING AND THE TRIAL COURT’S ADDITIONAL FINDINGS WERE UNSUPPORTED BY THE EVIDENCE AND DID NOT SUPPORT A CONCLUSION THAT HE POSED A HIGH RISK FOR REOFFENDING 5

II.THE TRIAL COURT ERRED BY FINDING THAT MR. THOMAS COMMITTED AN OFFENSE AGAINST A MINOR WHEN HIS INDECENT LIBERTIES CONVICTION DID NOT QUALIFY AS SUCH AN OFFENSE AND BY ENTERING A JUDICIAL FINDINGS AND ORDER FOR SEX OFFENDERS-SUSPENDED SENTENCE WHEN MR. THOMAS RECEIVED ONLY AN ACTIVE SENTENCE 13

CONCLUSION...... 14

CERTIFICATE OF COMPLIANCE WITH N.C. R. App. P. 28(J)(2) 15

CERTIFICATE OF FILING AND SERVICE...... 15

TABLE OF AUTHORITIES

CASES

Doe v. Sex Offender Registry Bd.,

897 N.E.2d 992 (Mass. 2008)...... 11

Fry Reg’l Med. Ctr., Inc. v. Hunt,

350 N.C. 39, 510 S.E.2d 150 (1999)...... 10

In re Detention of Mead,

790 N.W.2d 104 (Iowa 2010)...... 11

Lackey v. Hamlet City Bd. of Educ.,

257 N.C. 78, 125 S.E.2d 343 (1962)...... 10

People v. Hurtado,

52 P.3d 116 (Cal. 2002)...... 11

State v. Bowditch,

364 N.C. 335, 700 S.E.2d 1 (2010)...... 8

State v. Green,

___ N.C. App. ___, 710 S.E.2d 292 (2011)....7, 11, 12

State v. Hunt,

___ N.C. App. ___, 727 S.E.2d 584 (2012)...... 8

State v. Jarvis,

___ N.C. App. ___, 715 S.E.2d 252 (2011)....6, 9, 12

State v. Kilby,

198 N.C. App. 363, 679 S.E.2d 430 (2009)...... 4, 6

State v. Morrow,

200 N.C. App. 123, 683 S.E.2d 754 (2009), aff’d per curiam, 364 N.C. 424, 700 S.E.2d 224 (2010) 6, 10

State v. Pell,

___ N.C. App. ___, 712 S.E.2d 189, disc. review denied, 365 N.C. 207, 710 S.E.2d 12 (2011) 7, 8, 9

State v. Smith,

201 N.C. App. 681, 687 S.E.2d 525 (2010)...... 13

Statutes

N.C. Gen. Stat. §7A-27(b)...... 2

N.C. Gen. Stat. § 14-202(l)...... 7

N.C. Gen. Stat. §14-208.6(1m)...... 13

N.C. Gen. Stat. §14-208.6(4)(a.)...... 13

N.C. Gen. Stat. §14-208.40(a)(2)...... 5

N.C. Gen. Stat. §14-208.40A(a)...... 13

N.C. Gen. Stat. §14-208.40A(d)...... 5

N.C. Gen. Stat. §14-208.40A(e)...... 5

N.C. Gen. Stat. §14-208.40B(a)...... 13

Other Authorities

Andrew Harris, Amy Phenix, R. Karl Hanson, & David Thornton,STATIC-99 Coding Rules Revised-2003, (last visited August 22, 2012) 10

The New Oxford English Reference Dictionary

(2d ed. 1996)...... 9

No. COA12-667 TWENTY-SIXTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

***************************************

STATE OF NORTH CAROLINA)

)

v.)From Mecklenburg

)

FRANKLIN ROOSEVELT THOMAS, SR.)

***************************************

BRIEF OF DEFENDANT-APPELLANT

***************************************

ISSUES PRESENTED

I.WHETHERTHE TRIAL COURT ERRED BY DETERMINING THAT MR. THOMAS REQUIRED THE HIGHEST POSSIBLE LEVEL OF SUPERVISION AND MONITORING WHEN THE RISK ASSESSMENT CLASSIFIED HIM AS ONLY A LOW RISK FOR REOFFENDING AND THE TRIAL COURT’S ADDITIONAL FINDINGS WERE UNSUPPORTED BY THE EVIDENCE AND DID NOT SUPPORT A CONCLUSION THAT HE POSED A HIGH RISK FOR REOFFENDING?

II. WHETHER THE TRIAL COURT ERRED BY FINDING THAT MR. THOMAS COMMITTED AN OFFENSE AGAINST A MINOR WHEN HIS INDECENT LIBERTIES CONVICTION DID NOT QUALIFYAS SUCH AN OFFENSE AND BY ENTERING A JUDICIAL FINDINGS AND ORDER FOR SEX OFFENDERS-SUSPENDED SENTENCE WHEN MR. THOMAS RECEIVED ONLY AN ACTIVE SENTENCE?

STATEMENT OF THE CASE

On 15 August 2011, a Mecklenburg County Grand Jury indicted Mr. Franklin Roosevelt Thomas, Sr. on two counts of taking indecent liberties with children. (R p 4) During the 14 February 2012 Session of Superior Court, MecklenburgCounty, the Honorable Forrest D. Bridges presiding, Mr. Thomas pled guilty to one count of indecent liberties in exchange for dismissal of the other count. (R p 7-10) Judge Bridges sentenced Mr. Thomas to a presumptive-range term of 16 to 20 months. (R p 11-12) Judge Bridges also ordered Mr. Thomas to register as a sex offender for 30 years. (R p 17) The STATIC-99 Risk Assessment indicated that Mr. Thomas posed a low risk of reoffending. (R p 16) Judge Bridges made additional findings, determined that Mr. Thomas required the highest possible level of supervision and monitoring, and ordered that he enroll in satellite-based monitoring (SBM) for a term of ten years. (R p 17-19) Mr. Thomas entered written notice of appeal of the SBM order. (R p 20)

STATEMENT OF GROUNDS FOR APPELLATE JURISDICTION

The ground for review is a final order of the Superior Court under N.C. Gen. Stat. §7A-27(b).

STATEMENT OF THE FACTS

Mr. Thomas pled guilty to one count of indecent liberties. According to the State’s factual basis, Mr. Thomas was either dating, or married to, nine-year-old A.B.’s mother. A.B. disclosed incidents of Mr. Thomas kissing her, “climbing on top of her, rubbing his penis against her, touching her breast and fondling her crotch over her clothing[.]” (T p 7) A.B.’s mother, who was not sworn as a witness, stated that she was married to Mr. Thomas. She also stated that A.B. was “not better. She’s very angry[,] … [s]he’s had nightmares. She wanted to sleep alone by herself at night. She won’t allow her brother to hug her, and that’s the damage … that he ha[s] caused.” (T p 8-9) The trial court sentenced Mr. Thomas to a term of 16 to 20 months in prison. (T p 13; R p 11)

As to SBM, the trial court determined that under paragraph one of the Judicial Findings and Order for Sex Offenders, section “(A) applies; (B) applies[,]” finding that Mr. Thomas had been convicted of an offense against a minor and a sexually violent offense. (T p 14; R p 17-18) The trial court determined that Mr. Thomas had not been classified as a sexually violent predator, was not a recidivist, and that the conviction offense was not an aggravated offense. (T p 14-15; R p 17-18)

The trial court reviewed a STATIC-99 risk assessment for Mr. Thomas. Mr. Thomas received negative three points for being sixty years of age or older. He received one point each for having a 1963 assault conviction, a 1968 conviction for “RAPE MISD,” and for having four or more prior sentencing dates. Mr. Thomas received a total of “0” points from a tally of all of the individual risk factors. As a result,Mr. Thomas was determined to pose a low risk of reoffending. (R p 16)

The trial court made the following “additional findings”:

The victim in this case was nine years old. The victim is suffering significant emotional trauma from these incidents. This Defendant was in a position of trust and took advantage of that position. Defendant also has a prior record although extremely old of another sex offense. The reccurrance [sic] of this Defendant’s sexual [sic] deviant [sic] behavior, many years after prior conviction and the present age of Defendant create some concern for the court on the likelihood of recidivism.

(R p 19)(original in all capital letters). The trial court concluded that Mr. Thomas required the highest possible level of supervision and monitoring and ordered that he enroll in SBM for ten years. (R p 17-19) In addition to entering a Judicial Findings and Order for Sex Offenders-Active Punishment (R p 17), the trial court also entered a Judicial Findings and Order for Sex Offenders-Suspended Sentence. (R p 18)

STANDARD OF REVIEW

On appeal from a satellite-based monitoring order,this Court reviews a trial court’s findings of fact “‘to determine whether they are supported by competent record evidence, and ... review[s] the trial court’s conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found.’” State v. Kilby, 198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009) (citation omitted).

ARGUMENT

Based upon the risk assessment performed on Mr. Thomas,he was determined to pose only a low risk of reoffending. (R p 16) Nevertheless, the trial court purported to make “additional findings” and determined that he required the highest possible level of supervision and monitoring. Not only were the trial court’s additional findings unsupported by the evidence, but they also did not support the trial court’s ultimate conclusion. Therefore,the trial court erred by determining that Mr. Thomas required the highest possible level of supervision and by subjecting him to SBM for a period of ten years. The SBM ordermust be reversed.

The only tool identified by the General Assembly for assessment of future risk was a risk assessment program to be developed by the Department of Correction (DOC). N.C. Gen. Stat. §14-208.40(a)(2); N.C. Gen. Stat. §14-208.40A(d) and (e). In response, DOC adopted the STATIC-99, which is an “‘actuarial 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.’” State v. Morrow, 200 N.C. App. 123, 125 n.3, 683 S.E.2d 754, 757 n.3 (2009) (citation omitted), aff’d per curiam, 364 N.C. 424, 700 S.E.2d 224 (2010).

Based upon the STATIC-99 performed in this case,sixty-five-year-old Mr. Thomas (T p 12; R p 7) was determined to pose only a low risk of reoffending. In fact, Mr. Thomas received a total of “0” points from a tally of all of the individual risk factors. (R p 16) As this Court has held, a low or moderate risk assessment alone is insufficient to support a determination that the offender required the highest possible level of supervision and monitoring. State v. Kilby, 198 N.C. App. 363,369-370, 679 S.E.2d 430, 434 (2009). Where an offender is determined to pose only a low or moderate risk for reoffending based upon the STATIC-99, the State must present additional evidence to support a determination that the offender requires the highest possible level of supervision and monitoring. Morrow,200 N.C. App. at 132, 683 S.E.2d at 761. Those additional findings must be supported by “competent record evidence[,]”State v. Jarvis, ___ N.C. App. ___, ___, 715 S.E.2d 252, 259 (2011), and must support the trial court’s ultimate conclusion.

Despite Mr. Thomas’s low risk of recidivism,the trial court made the following “additional findings”:

(R p 19) (original in all capital letters).

The trial court’s finding that the “victim is suffering significant emotional trauma from these incidents” was not supported by competent record evidence. Instead, the finding was based solely upon the unsworn statements of A.B.’s mother. (T p 8-9) Because her statements were “neither stipulated to nor assented to by [Mr. Thomas], … this ‘evidence’ [was] insufficient to support the trial court’s finding[.]” State v. Green, ___ N.C. App. ___, ___, 710 S.E.2d 292, 296 (2011). Indeed, defense counsel specifically contested her statements, as he argued that Mr. Thomas “denies two of those allegations involving his daughter as well as the alleged victim (inaudible). He denied those things.” (T p 18)

However, even if the statements of A.B.’s mother provided competent evidence to support the finding that the “victim is suffering significant emotional trauma from these incidents[,]” that finding did not support the trial court’s ultimate conclusion that Mr. Thomas posed a high risk of reoffending. In State v. Pell, ___ N.C. App. ___, 712 S.E.2d 189,disc. review denied, 365 N.C. 207, 710 S.E.2d 12 (2011),the trial court ordered the defendant to register as a sex offender based, in part, upon its finding that the defendant was a “‘danger to the community.’” Id. at ___, 712 S.E.2d at 191-92 (quoting N.C. Gen. Stat. § 14-202(l)). This Court recognized that “an examination of legislative intent reveals that ‘danger to the community’ only refers to those defendants who pose a risk of engaging in sex offenses following their release from incarceration.” Id. at ___, 712 S.E.2d at 192. The State argued that the victim impact statements introduced at the hearing “support[ed] a conclusion that [the] Defendant represent[ed] a ‘danger to the community.’” Id. at ___, 712 S.E.2d at 193. This Court rejected that argument, holding that

the victims’ statements all tended to address the manner in which Defendant committed his past offenses and the effect his actions had on each of their lives. This evidence offered very little in the way of predictive statements concerning [the] Defendant’s likelihood of recidivism. Accordingly, the victim impact statements in this case are insufficient to support the trial court’s finding that Defendant represented a “danger to the community.”

Id. at ___, 712 S.E.2d at 193 (emphasis added).

Likewise,one of the primary purposes of the SBM statutes is “to protect society from recidivists.” State v. Hunt,___ N.C. App. ___, ___,727 S.E.2d 584, 590 (2012) (citing State v. Bowditch, 364 N.C. 335, 342, 700 S.E.2d 1,6 (2010)). Thus, the determination of whether an offender requires the highest possible level of supervision and monitoring refers to those offenders who pose a high risk of reoffending. Here,as in Pell,A.B.’s emotional trauma, although unfortunate, was not predictive of Mr. Thomas’s likelihood of recidivism and therefore did not support the trial court’s conclusion that Mr. Thomas required the highest possible level of supervision and monitoring. See Pell, ___ N.C. App. at ___, 712 S.E.2d at 193.

The trial court also found that Mr. Thomas had “a prior record although extremely old of another sex offense.” However, the STATIC-99 had already takenMr. Thomas’s 1968 conviction for “RAPE MISD” into consideration. (R p 14, 16) As the term “additional” means “added, extra, supplementary,”The New Oxford English Reference Dictionary 15 (2d ed. 1996), a trial court’s additional findings must consist of something other than the evidence contained within the STATIC-99. Therefore, the trial court’s finding was not an “additional finding” that could support a conclusion that Mr. Thomas required the highest possible level of supervision and monitoring. See Jarvis,___ N.C. App. at ___, 715 S.E.2d at 259. Indeed, despite the fact that Mr. Thomas received one point for that forty-four-year old misdemeanor conviction on the STATIC-99, he was still determined topose only a low risk of reoffending. (R p 16)

The trial court further found that the “reccurrance [sic] of this Defendant’s sexual [sic] deviant [sic] behavior, many years after prior conviction and the present age of Defendant create some concern for the court on the likelihood of recidivism.” (R p 19) By finding that Mr. Thomas’s age created a concern regarding the likelihood of recidivism, the trial court wholly disregarded the STATIC-99’s determination that Mr. Thomas’sadvanced age actually indicated that he was unlikely to reoffend. (R p 16) According to the STATIC-99, which is the “most widely used sex offender risk assessment instrument in the world,” youth, rather than mature adulthood, is a risk factor for recidivism. (R p 16). Indeed, the STATIC-99 is backed by research which “shows that sexual recidivism is more likely in an offender’s early adult years than in an offender’s later adult years.” Andrew Harris, Amy Phenix, R. Karl Hanson, & David Thornton,STATIC-99 Coding Rules Revised-2003 23, (last visited August22, 2012). In keeping with that research, Mr. Thomas actually received negative three points because he was sixty years of age or older. (R p 16)

Although the trial court was “not limited to the DOC’s risk assessment[,]” Morrow, 200 N.C. App. at 131, 683 S.E.2d at 760-61, it certainly could not contradict it. See Fry Reg’l Med. Ctr., Inc. v. Hunt, 350 N.C. 39, 45, 510 S.E.2d 150, 163 (1999) (“The interpretation of a statute given by the agency charged with carrying it out is entitled to great weight.”) Because “[a] judgment will not be supported by findings of fact… which are antagonistic, inconsistent, or contradictory as to material matters[,]” Lackey v. HamletCity Bd. of Educ., 257 N.C. 78, 84, 125 S.E.2d 343, 347 (1962), the SBM order must be reversed.

The trial court’s finding that Mr. Thomas “was in a position of trust and took advantage of that position” also did not support a conclusion that he posed a high risk of reoffending. On the contrary, those facts indicated that Mr. Thomas was less likely to reoffend because “a defendant likely to commit crimes only against family members or close acquaintances is less likely to reoffend because potential victims will be aware of the defendant’s status as a sex offender.” People v. Hurtado, 52 P.3d 116, 121 (Cal. 2002). Thus, because A.B. was a family member, as opposed to a stranger,this finding did not support a conclusion that Mr. Thomas required the highest possible level of supervision and monitoring. See, e.g.,In re Detention of Mead, 790 N.W.2d 104, 113 (Iowa 2010) (the offender’s “choice of victims who are strangers made him a risk to reoffend”); Doe v. Sex Offender Registry Bd.,897 N.E.2d 992, 999 n.10 (Mass. 2008) (“‘the presence of deviant sexual interests dramatically increases the risk of reoffending and ... the strongest deviant sexual interests have empirically been found to be more prevalent among those offenders who victimize strangers[.]’”)

Finally, the trial court’s mere finding that the “victim in this case was nine years old” did not support a conclusion that Mr. Thomas required the highest possible level of supervision and monitoring. This case is distinguishable from Green, where this Court held that a determination of high risk for reoffending was supported by a finding that the four-year-old and seventeen-month-old “victimswere especially young[.]” Green, ___ N.C. App. at ___, 710 S.E.2d at 294. In Green, the trial court made the additional findings that “neither victim was able to advocate for herself, one victim was too young to possibly even speak,’ and therefore ‘the risk to other similarly situated individuals is [] substantial[.]’” Id. at ___, 710 S.E.2d at 294. Here,unlike in Green,the trial court did not make additional findings that nine-year-old A.B. was not able to advocate for herself, nor could it have because A.B. did advocate for herself by “initially report[ing] to her mother that [Mr. Thomas] was touching her inappropriately” and “later disclos[ing] that the touching was continuing.” (T p 7)

Because the STATIC-99 risk assessment performed on Mr. Thomas indicated that he posed only a low risk of reoffending, the trial court was required to make additional findings to support a conclusion that he required the highest possible level of supervision and monitoring. However, the trial court’s additional findings were not supported by the evidence and did not support the trial court’s ultimate conclusion. Thus, the trial court erred by determining that Mr. Thomas required the highest possible level of supervision and monitoring and byordering him to enroll in SBM for a period of ten years. The trial court’s SBM order must be reversed. See Jarvis, ___ N.C. App. at ___, 715 S.E.2d at 261.