An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1048

                               Filed: 1 September 2015

Craven County, No. 00 CRS 3817

STATE OF NORTH CAROLINA,

              v.

MARK W. GROSS, Defendant.


        Appeal by defendant from order entered 30 October 2013 by Judge Charles H.

Henry in Craven County Superior Court. Heard in the Court of Appeals 18 February

2015.


        Attorney General Roy Cooper, by Special Deputy Attorney General Joseph
        Finarelli, for the State.

        W. Michael Spivey for defendant-appellant.


        GEER, Judge.


        Defendant Mark W. Gross appeals from an order requiring him to enroll in

satellite based monitoring (“SBM”) for a period of 10 years following his release from

prison as a result of his guilty plea to three counts of attempted first degree sexual

offense.   On appeal, defendant primarily argues that the trial court erred in

concluding he required the highest possible level of supervision based solely on its

finding that the victims were under the age of eight. However, under State v. Green,
                                    STATE V. GROSS

                                   Opinion of the Court



211 N.C. App. 599, 710 S.E.2d 292 (2011), this finding is sufficient to support the trial

court’s SBM order, and we consequently affirm.

                                         Facts

      Defendant was indicted for one count of first degree statutory sexual offense

on 17 April 2000 and for two more counts on 16 October 2000. On 18 January 2001,

defendant pled guilty to three counts of attempted first degree sexual offense in

violation of N.C. Gen. Stat. § 14-27.4, with the offenses having occurred on 1 February

1999, 1 January 2000, and 20 March 2000. The trial court sentenced defendant to a

presumptive-range term of 151 to 191 months imprisonment and recommended that

defendant attend a treatment program for sex offenders.

      On 11 March 2013, defendant received notice to appear in court for a hearing

to determine whether he was subject to SBM. On 15 April 2013, defendant was given

a “STATIC-99” recidivism risk assessment, and he received a “0” score, placing him

in the “Low” risk category for recidivism. The assessment tool lists 10 risk factors

and allows for scores ranging from “-3” to “1.” Defendant received “-1” for being

between the age of 40 and 59.9 years and a “1” for being convicted of offenses involving

unrelated victims. In the remaining eight categories defendant scored “0” for each.

      After hearings on 13 June 2013 and 4 October 2013, the trial court entered an

order requiring defendant to submit to SBM for a period of 10 years following his

release from prison. The trial court’s order determined, in particular, that defendant



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                                    Opinion of the Court



was convicted of a “reportable conviction as defined by G.S. 14-208.6(4),” there had

been no prior determination on SBM for defendant, and the district attorney had

provided adequate notice of the SBM hearing to defendant. The order further found

that defendant’s conviction “involved the physical, mental, or sexual abuse of a minor,

that the offense was not an aggravated offense or a violation of G.S. 14-27.2A or G.S.

14-27.4A, the defendant is not a recidivist or predator, and the Division of Adult

Correction has conducted a risk assessment of the defendant, and based on that

assessment . . . and the additional findings . . . the defendant requires the highest

possible level of supervision and monitoring.” The trial court made the following

additional findings: “The three minor victims were under the age of eight. One was

his daughter and the other two were children of his neighbors. In committing these

acts the defendant took advantage of a position of trust.” Defendant timely appealed

to this Court from the SBM order.

                                       Discussion

       Defendant argues that the trial court erred in requiring him to be enrolled in

SBM.

                     This Court established the standard of review for
             SBM enrollment in State v. Kilby, [198] N.C. App. [363],
             [366-67], 679 S.E.2d 430[, 432 (2009)]. Kilby first noted
             that the trial court is statutorily required to make findings
             of fact to support its legal conclusions. Id. . . . Kilby further
             stated:




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                                  Opinion of the Court



                   “[W]e review the trial court’s findings of fact to
                   determine whether they are supported by competent
                   record evidence, and we review 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. We [then] review the trial
                   court’s order to ensure that the determination that
                   defendant requires the highest possible level of
                   supervision and monitoring reflects a correct
                   application of law to the facts found.”

State v. Morrow, 200 N.C. App. 123, 126, 683 S.E.2d 754, 757 (2009) (quoting Kilby,

198 N.C. App. at 367, 679 S.E.2d at 432), aff’d per curiam, 364 N.C. 424, 700 S.E.2d

224 (2010).

      Where no prior SBM determination has been made for a defendant who has

been convicted of a reportable offense as described in N.C. Gen. Stat. § 14-208.6(4)

(2013), the trial court is required to determine whether that defendant should submit

to SBM. N.C. Gen. Stat. § 14-208.40B(a) (2013). Sexually violent predators and those

who commit aggravated crimes or offenses in violation of N.C. Gen. Stat. §§ 14-27.2A

or 27.4A (2013) are required to be enrolled in lifetime SBM. N.C. Gen. Stat. § 14-

208.40B(c). However, if the trial court determines that the defendant does not fall

into one of these categories, but it determines that the defendant committed offenses

involving physical, mental, or sexual abuse of a minor, then the trial court must

determine whether the defendant requires the highest possible level of supervision.

Id.




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                                    STATE V. GROSS

                                   Opinion of the Court



      Here, defendant’s sole argument is that the trial court’s additional findings

regarding the victims are unsupported by evidence and do not support the

determination that he required the highest possible level of supervision.             In

determining whether a defendant requires the highest level of supervision, the trial

court is required to order and consider a recidivism risk assessment. See N.C. Gen.

Stat. § 14-208.40B(c) (“Upon receipt of a risk assessment from the Division of Adult

Correction, the court shall determine whether, based on the Division of Adult

Correction’s risk assessment, the offender requires the highest possible level of

supervision and monitoring.”).

      In order to perform this assessment, the North Carolina Department of

Correction uses the STATIC-99 as “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. Thomas, ___ N.C. App. ___, ___, 741 S.E.2d 384, 386 (2013) (quoting Morrow,

200 N.C. App. at 125 n.3, 683 S.E.2d at 757 n.3). “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 ___, 741

S.E.2d at 386. While “proffered and otherwise admissible evidence relevant to the

risk posed by a defendant should be heard by the trial court[,]” Morrow, 200 N.C. App.



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                                   Opinion of the Court



at 131, 683 S.E.2d at 760-61, “ ‘additional findings’ cannot be based upon factors

explicitly considered in the STATIC-99 assessment[,]” Thomas, ___ N.C. App. at ___,

741 S.E.2d at 387 (quoting Morrow, 200 N.C. App. at 131, 683 S.E.2d at 761).

      The State concedes that there is insufficient evidence for the finding that

defendant took advantage of a position of trust. Further, while the State contends

that the finding of two victims being children of neighbors is supported by evidence,

the State nonetheless concedes, and we agree, that because this finding duplicates

considerations in the STATIC-99 report as to whether the victims were “unrelated”

and “strangers,” the trial court should not have used it to support its SBM order.

      Defendant contends that the finding that “[t]he three minor victims were

under the age of eight[,]” which defendant concedes is supported by competent

evidence, could not by itself support the SBM order. Defendant argues this is so

because the record “provides no evidence that the age of the victims is predictive of

recidivism either as a scientific fact or as a rational inference from the circumstances

of [defendant] and the offenses he committed.” On the other hand, the State suggests

that based on Green, this finding supports the SBM order.

      In Green,

             the trial court found that [the defendant] require[d] the
             highest possible level of supervision and monitoring based
             on the DOC risk assessment of “moderate-low” and based
             on the following additional findings: (1) the victims were
             especially young, neither victim was able to advocate for
             herself, “one victim was too young to possibly even speak,”


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                                    STATE V. GROSS

                                   Opinion of the Court



             and therefore “the risk to other similarly situated
             individuals is . . . substantial;” (2) [the defendant] has
             “committed multiple [acts] of domestic violence;” and (3)
             [the defendant] has obtained no sex offender treatment.

211 N.C. App. at 601, 710 S.E.2d at 294.

      While in Green this Court determined that the finding of multiple acts of

domestic violence was unsupported by the evidence, it also concluded “that the trial

court’s additional findings that [the defendant] had not received treatment and that

the victims were very young were proper findings to support the trial court’s

determination that [the defendant] requires the highest possible level of supervision.”

Id. at 605, 710 S.E.2d at 296-97. In doing so, this Court reasoned in part that the

very young age of victims is relevant to an offender’s risk of recidivism because it “is

an appropriate aggravating factor for sentencing purposes, [and there is] no reason

why that fact would not also be a similarly ‘aggravating’ finding in the SBM context.”

Id., 710 S.E.2d at 296.

      We agree with the State that, under Green, a finding that a victim was of a

young age can support an SBM order: such a finding presumes the inability of such

victims to advocate for themselves and, thus, indicates substantial risk to others

similarly situated. In this regard, the finding that “[t]he three minor victims were

under the age of eight” is substantially similar to the finding in Green that “the

victims were especially young[.]” Id. at 601, 710 S.E.2d at 294. We, therefore,

conclude that the trial court’s conclusion that defendant requires the highest possible


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                                   Opinion of the Court



level of supervision is supported by the order’s finding that the victims were younger

than eight. See also State v. Smith, ___ N.C. App. ___, ___, 769 S.E.2d 838, 841 (2015)

(holding imposition of SBM supported by evidence and related findings “with respect

to the age of the alleged victims, the temporal proximity of the events, and defendant’s

increasing sexual aggressiveness[,]” where all three victims were five years old or

younger, and incidents were separated by eight and 10 months respectively).

      AFFIRMED.

      Judges ELMORE and INMAN concur.

      Report per Rule 30(e).




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