Opinion

State v. Moir

  • 231 N.C. App. 628
  • 753 S.E.2d 195
  • 2014 N.C. App. LEXIS 23
  • 2014 WL 44016
Court
Court of Appeals of North Carolina
Filed
Jan 7, 2014
Status
Published
Author
Steelman
On the bench
Steelman, Martin, Dillon
Cited by
1 cases
Authority
More cited than 45.7%

The opinion

NO. COA13-589

NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2014

STATE OF NORTH CAROLINA

v. Catawba County

No. 01 CRS 1284

JAMES KEVIN MOIR

Appeal by defendant from order entered 18 February 2013 by

Judge Richard D. Boner in Catawba County Superior Court. Heard in

the Court of Appeals 21 October 2013.

Attorney General Roy Cooper, by Associate Attorney General J.

Rick Brown, for the State.

Crowe & Davis, P.A., by H. Kent Crowe, for defendant-

appellant.

STEELMAN, Judge.

Where defendant was convicted of an offense qualifying him as

a Tier I sex offender under the Adam Walsh Act, he was eligible

for termination from registration in 10 years. The trial court

erred in concluding that defendant was not a Tier I offender.

I. Factual and Procedural Background

On 9 January 2001, James Kevin Moir (defendant) was indicted

for first-degree statutory sexual offense and indecent liberties

with a child. On 5 September 2001, defendant pled guilty to two

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counts of indecent liberties with a child in exchange for the

dismissal of the first-degree sexual offense charges. On 28

November 2001, defendant was sentenced to 16-20 months

imprisonment. This sentence was suspended and defendant was placed

on supervised probation for 60 months, and ordered to pay court

costs. Defendant was further required to register as a sex

offender. Defendant did so on 15 March 2002. On 25 June 2007,

defendant’s probation was terminated by the court.

On 22 May 2012, defendant filed a Petition for Termination of

Sex Offender Registration in the Superior Court of Catawba County.

On 18 February 2013, the trial court denied defendant’s petition.

Defendant appeals.

II. Request for Relief

In his sole argument on appeal, defendant contends that the

trial court erred as a matter of law in ruling that the relief

sought by defendant failed to comply with the federal Jacob

Wetterling Act and the federal Adam Walsh Act. We agree.

A. Standard of Review

“Resolution of issues involving statutory construction is

ultimately a question of law for the courts. [W]here an appeal

presents [a] question[] of statutory interpretation, full review

is appropriate, and we review a trial court’s conclusions of law

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de novo.” State v. Davison, 201 N.C. App. 354, 357, 689 S.E.2d

510, 513 (2009) (citations and quotations omitted), disc. review

denied, 364 N.C. 599, 703 S.E.2d 738 (2010).

B. Analysis

N.C. Gen. Stat. § 14-208.12A provides that:

(a) Ten years from the date of initial county

registration, a person required to register

under this Part may petition the superior

court to terminate the 30-year registration

requirement if the person has not been

convicted of a subsequent offense requiring

registration under this Article.

...

(a1) The court may grant the relief if:

(1) The petitioner demonstrates to the court

that he or she has not been arrested for any

crime that would require registration under

this Article since completing the sentence,

(2) The requested relief complies with the

provisions of the federal Jacob Wetterling

Act, as amended, and any other federal

standards applicable to the termination of a

registration requirement or required to be met

as a condition for the receipt of federal

funds by the State, and

(3) The court is otherwise satisfied that the

petitioner is not a current or potential

threat to public safety.

N.C. Gen. Stat. § 14-208.12A (2011). In the instant case, the

trial court found that defendant had been subject to registration

for at least 10 years, had not been subsequently arrested for or

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convicted of any offenses that would require registration, and had

a low risk of re-offending. However, the trial court then found

that:

11. Touching of the genital area of a minor

with the intent to gratify sexual desire is

considered "sexual contact" under the

provisions of 18 U.S.C. § 2246(3), and sexual

contact is classified as "abusive sexual

contact" under 18 U.S.C. § 2244.

12. Abusive sexual contact is considered to

be a Tier II offense under the provisions of

42 U.S.C. § 16911(3)(A)(iv).

13. The registration for Tier II offenses

under the provisions of the Jacob Wetterling

Act, 42 U.S.C. § 14071, and the provisions of

the Adam Walsh Child Protection and Safety Act

of 2006, 42 U.S.C. § 16911, et seq., is 25

years. This registration period cannot be

reduced.

14. The defendant has not been registered as

a sex offender for at least 25 years.

Based upon these findings, the trial court concluded that the

termination of defendant’s sex offender registration would not

comply with the Jacob Wetterling Act, or its amended form, the

Adam Walsh Act. The trial court therefore denied defendant’s

motion.

The federal statute in question, the Adam Walsh Act, provides

the following definitions:

(2) Tier I sex offender

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The term “tier I sex offender” means a sex

offender other than a tier II or tier III sex

offender.

(3) Tier II sex offender

The term “tier II sex offender” means a sex

offender other than a tier III sex offender

whose offense is punishable by imprisonment

for more than 1 year and—

(A) is comparable to or more severe than the

following offenses, when committed against a

minor, or an attempt or conspiracy to commit

such an offense against a minor:

(i) sex trafficking (as described in

section 1591 of Title 18);

(ii) coercion and enticement (as described

in section 2422(b) of Title 18);

(iii) transportation with intent to engage in

criminal sexual activity (as described in

section 2423(a)) of Title 18;

(iv) abusive sexual contact (as described in

section 2244 of Title 18);

(B) involves—

(i) use of a minor in a sexual performance;

(ii) solicitation of a minor to practice

prostitution; or

(iii) production or distribution of child

pornography; or

(C) occurs after the offender becomes a tier

I sex offender.

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42 U.S.C. § 16911 (2006). We note that this act defines offender

status by the offense charged, not by the facts underlying the

case. Specifically, we read language such as “whose offense is

punishable by imprisonment for more than 1 year[,]” as well as the

lists of elements of the offense, as an indication that Tier status

as a sex offender is based upon the elements of the offense, not

upon the evidence presented as to the facts underlying it. In the

instant case, however, the trial court based its ruling upon the

facts underlying the plea, not upon the pled offense of indecent

liberties.

The trial court’s interpretation of federal statute was in

error. In the instant case, defendant pled guilty to indecent

liberties with a child. In In re Hamilton, ___ N.C. App. ___, 725

S.E.2d 393 (2012), we held that a conviction of indecent liberties

with a child results in Tier I sex offender status. Pursuant to

the Adam Walsh Act, a person convicted of indecent liberties would

be subject to 15 years of registration, which may be terminated in

ten years as provided in N.C. Gen. Stat. § 14-208.12A. Id. at

___, 725 S.E.2d at 399. Similarly, in In re McClain, ___ N.C.

App. ___, 741 S.E.2d 893 (2013), the parties stipulated, and we

held, that a defendant who pled guilty to indecent liberties with

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a child was a Tier I sex offender. McClain at ___, 741 S.E.2d at

896.

We find Hamilton and McClain determinative of the instant

case. Defendant pled guilty to indecent liberties, and was

therefore a Tier I sex offender. We hold that the relief he sought

complied with the Adam Walsh Act. However, we noted in Hamilton:

the ultimate decision of whether to terminate

a sex offender's registration requirement

still lies in the trial court's discretion.

See N.C. Gen. Stat. § 14–208.12A(a1)

(providing that a trial court “may” grant a

petitioner relief if terms of the statute are

met). Thus, after making findings of fact

supported by competent evidence on each issue

raised in the petition, the trial court is

then free to employ its discretion in reaching

its conclusion of law whether Petitioner is

entitled to the relief he requests.

Hamilton at ___, 725 S.E.2d at 399.

Upon remand, the trial court is instructed to re-evaluate its

findings in accordance with this opinion. It may then, in its

discretion, grant or deny defendant’s petition.

VACATED AND REMANDED.

Chief Judge MARTIN and Judge DILLON concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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