State v. Fuller ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-243
Filed: 5 November 2019
Wake County, No. 18CRS215701
STATE OF NORTH CAROLINA
v.
RYAN KIRK FULLER, Defendant.
Appeal by Defendant from order entered 23 October 2018 by the Honorable A.
Graham Shirley in Wake County Superior Court. Heard in the Court of Appeals 18
September 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Narcisa
Woods, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Andrew
DeSimone, for the Defendant.
DILLON, Judge.
Defendant Ryan Kirk Fuller pleaded guilty to one count of felony secret
peeping. During sentencing, the trial court determined that Defendant was a “danger
to the community” and, accordingly, ordered that he register as a sex offender for
thirty (30) years pursuant to N.C. Gen. Stat. § 14-202(l). Defendant appeals from this
portion of the order. We affirm.
I. Factual and Procedural Background
STATE V. FULLER
Opinion of the Court
The victim, Mrs. Smith1, and her husband lived with their teenage son in their
home in Apex. Defendant, a long-time friend of the Smiths, lived in the home as well.
On 17 August 2018, Mr. Smith walked into his living room and observed a
video of his wife undressing in their bedroom playing on the television. Mr. Smith
was confused as to how the image was appearing on his television. Mr. Smith then
saw Defendant in the living room watching the video and immediately contacted the
police.
Defendant soon admitted to the following: He was responsible for the video
and other recordings of Mrs. Smith made while she was either in her bedroom or
bathroom. He had developed romantic feelings for Mrs. Smith, leading him to
purchase and install a phone charger with a secret camera to record her when she
was in her bathroom and bedroom. The camera activated via a motion sensor and
had the capability, not only to record and store, but also to cast a live feed. He had
been recording Mrs. Smith for more than two months when Mr. Smith caught him.
And he had sorted and downloaded approximately fifty (50) images of Mrs. Smith
from his recordings onto his personal devices.
Defendant was indicted on three counts of secret peeping, pursuant to N.C.
Gen. Stat. § 14-202. Defendant pleaded guilty to one count in exchange for dismissal
1 Pseudonyms are used to protect the victims’ identity.
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STATE V. FULLER
Opinion of the Court
of the two other counts. The trial court accepted his plea and sentenced Defendant
to a suspended prison term.
The trial court then heard arguments on whether to require Defendant to
register as a sex offender, as registration is not mandatory for those convicted under
Section 14-202, but rather is appropriate only if the trial court makes certain
findings. After hearing arguments from counsel, the trial court ordered Defendant to
register as a sex offender. Defendant timely appealed.
II. Analysis
Defendant argues that the trial court erred in requiring him to register as a
sex offender. We disagree.
When a person is convicted for secretly peeping pursuant to Section 14-202(d)
of our General Statutes, registration as a sex offender is not automatically required.
N.C. Gen. Stat. § 14-202 (2018). Rather, the General Assembly directs that “the
sentencing court shall consider [(1)] whether the person is a danger to the community
and [(2)] whether requiring the person to register as a sex offender pursuant to Article
27A of this Chapter would further the purposes of that Article as stated in G.S. 14-
208.5.” N.C. Gen. Stat. § 14-202(l).
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STATE V. FULLER
Opinion of the Court
In his appeal, Defendant argues that the trial court should not have ordered
registration as there was no evidence that he was “a danger to the community.”2
Our General Assembly has not defined “danger to the community,” but it could
be argued that a normal reading of the phrase would include someone who is willing
and capable to violate a position of trust to install sophisticated, hard-to-detect
devices to record his victim in intimate settings, as Defendant did in this case.
There is limited, controlling jurisprudence on who constitutes a “danger to the
community” under Section 14-202(l). In support of his argument, Defendant relies
primarily on two cases; namely, the one published opinion from our Court where this
issue was squarely addressed, State v. Pell, 211 N.C. App. 376, 712 S.E.2d 189 (2011),
and an unpublished case decided by our Court seven years later, State v. Guerrette,
818 S.E.2d 648, 2018 N.C. App. LEXIS 967 (N.C. Ct. App. Oct. 2, 2018). Neither party
has cited to any other North Carolina opinion, nor has our research uncovered any,
where the issue before our Court or our Supreme Court was whether the trial court
erred in ordering registration for a defendant convicted pursuant to Section 14-202.
In any event, as Pell is a published decision, we are bound by the holdings therein.
See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
2 Defendant makes no clear argument as to the second required finding, that requiring him to
register would not serve the purposes set forth in N.C. Gen. Stat. § 14-208.5. See N.C. Gen. Stat. § 14-
202(l). We, though, conclude that requiring Defendant to register would serve those statutory
purposes.
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STATE V. FULLER
Opinion of the Court
In Pell, our Court defined one who is a “danger to the community” as a
defendant who “pose[s] a risk of engaging in sex offenses following release from
incarceration or commitment.” Pell, 211 N.C. App. at 379, 712 S.E.2d at 191.
Pell then suggested that whether one is a “danger to the community” is a mixed
question of fact and law, Id. at 380, 712 S.E.2d at 192, and that our review on appeal
is as follows:
Whether a trial court finds that a defendant poses a risk of
engaging in sex offenses following release from
incarceration [and is, therefore, a “danger to the
community”] will be based upon a review of the
surrounding factual circumstances. Accordingly, [our]
Court will review the trial court’s findings to ensure that
they are supported by competent evidence, and we review the
conclusions of law to ensure that they reflect a correct
application of law to the facts.
Id. at 380-81, 712 S.E.2d at 192 (emphasis added).3
Here, the trial court determined that Defendant posed a risk of committing
sexual offenses – and therefore was a danger to the community – based on its findings
that (1) Defendant made the recordings “over a long period of time[;]” (2) Defendant
3We note that in another published opinion, our Court suggested in dicta that our standard of
review is for an “abuse of discretion.” State v. Mastor, 243 N.C. App. 476, 482, 777 S.E.2d 516, 520
(2015). Indeed, since we must consider the “danger to the community” determination, in part, as a
question of fact, it could be argued that we are to afford the trial court some discretion in making that
determination. That is, if the determination is not a pure question of law, then it is possible that in a
close case, one judge could determine certain findings support a “danger to the community”
determination and another judge could determine that these same findings do not support a “danger
to the community” determination.
In any case, we are bound by the standard of review as set forth in Pell, and we apply that
standard in this case.
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STATE V. FULLER
Opinion of the Court
used a sophisticated method of recording Mrs. Smith by use of a hidden camera; (3)
Defendant invaded Mrs. Smith’s private spaces on multiple occasions to move his
camera back and forth between Mrs. Smith’s bedroom and her bathroom when she
was not present; (4) Defendant stored his recordings to allow him to view them at any
time; and (5) Defendant would have no difficulty in repeating his crime as the
recording devices were easily obtainable and inexpensive.
We conclude that these findings are supported by competent evidence. After
he was caught in the act, Defendant essentially admitted to these findings and has
not challenged any of them on appeal.
We further conclude that these findings and the uncontradicted evidence
before the trial court support the determination that Defendant posed a risk of sexual
offenses in the future to warrant imposition of the registration requirement.4 Indeed,
the evidence shows that Defendant is capable of taking advantage of long-time, close
friends who trusted him to live in their home with them and their teenage son. They
show that he is willing and able to devise and execute a scheme using sophisticated
4 We note that the standard used by our Court in Pell, that registration should only be for
those who “pose a risk of engaging in sex offenses [in the future],” was not clear on how much of a risk
the trial court must determine a defendant to be in order to impose the registration requirement. Pell,
211 N.C. App. at 379, 712 S.E.2d at 191. Clearly, the trial court need not determine that the risk of
recidivism is an absolute certainty. But the trial court must do more than rely on a determination
that there is always a slight risk with every defendant to recidivate. We conclude that the trial court’s
findings must demonstrate that the level of risk is such that there is a reasonable likelihood that the
defendant in question will recidivate. See id. at 382, 712 S.E.2d at 193 (stating that the State’s
evidence was insufficient to warrant the defendant’s registration as a sex offender because the
evidence “offered very little . . . concerning [the d]efendant’s likelihood of recidivism”) (emphasis
added).
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STATE V. FULLER
Opinion of the Court
means to commit his crime in a way that would likely be undetected by his victim.
They show that he is willing and able to put forth effort over a period of time to further
his crime, in that he repeatedly invaded the personal space of his victim to re-position
his camera. They show that he is willing and able to commit his crime in a manner
which could cause greater harm to his victim that that suffered by typical victims of
this crime: where the harm for most victims of peeping is the knowledge that they
have been spied upon, here Defendant made permanent recordings which could be
viewed numerous times by anyone in the future. They show that he could commit
the crime again in the future with ease. And they show a lack of real remorse in that
he only confessed when he was caught red-handed by his victim’s husband.
Defendant argues that Pell compels a reversal since the trial court largely
relied on the facts of his crime to determine whether he posed a risk of reoffending.
We do not read Pell so narrowly. Specifically, in Pell, the State’s evidence showed
that the defendant was only a low to moderate risk and was moving in the right
direction and that his psychiatric issues, which were a cause of his criminal behavior,
were in remission. Id. at 381, 712 S.E.2d at 192-93. The State in that case, though,
had relied on victim impact statements, which “all tended to address the manner in
which [the d]efendant committed his past offenses and the effect his actions had on
each of [the victims’] lives.” Id. at 382, 712 S.E.2d at 193. The Pell Court rejected
the State’s argument that these statements were sufficient, holding that the State’s
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STATE V. FULLER
Opinion of the Court
evidence “offered very little in the way of predictive statements concerning [the
d]efendant’s likelihood of recidivism.” Id.
But, in so holding, the Court did not categorically reject the notion that a trial
court could rely largely on the manner in which a defendant goes about committing
his crime in determining that the defendant is a “danger to the community.” Rather,
the Pell Court held that “the victim impact statements [describing the manner in
which the defendant had committed his crimes] in this case are insufficient to support
the trial court’s finding that [d]efendant represented ‘a danger to the community.’ ”
Id. (emphasis added).
Here, Defendant’s manner of committing his crime was much more
sophisticated and stealthier than that used by the defendant in Pell. That is,
Defendant committed his crime in a way that was almost undetectable. Also, the
findings here show that Defendant is willing to take advantage of even his close
friends who had placed a great deal of trust in him. And, unlike Pell, there is no
indication here that a cause of Defendant’s behavior was in remission or that he was
moving in the right direction. Indeed, Defendant chose his victim merely because he
had a crush on her; and there is no indication that he will not develop a crush on a
wife or girlfriend of a close friend in the future and, thereby, be a danger to that
member of the community.
III. Conclusion
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STATE V. FULLER
Opinion of the Court
We conclude that the trial court’s findings are supported by the evidence and
that these findings support the trial court’s imposition of the sex offender registration
requirement in this case.
AFFIRMED.
Judge TYSON concurs, writing separately.
Judge BROOK dissents.
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No. COA19-243 – State v. Fuller
TYSON, Judge, concurring.
The majority’s opinion correctly affirms the trial court’s order for Defendant to
register as a sex offender for thirty years, with a provision for Defendant, if he is not
a recidivist, to petition after ten years to be removed from the registry. I vote to
affirm the trial court’s order. I write separately to assert and show the trial court’s
ruling is also properly affirmed under a less demanding abuse of discretion standard
of review. State v. Mastor, 243 N.C. App. 476, 482, 777 S.E.2d 516, 520 (2015).
I. Background
Defendant agreed in his plea bargain agreement that “sex offender registration
shall be determined by the court.” The trial court included and read that provision
aloud in its plea colloquy with Defendant, which Defendant affirmed on the record
and in open court as being a part of his full plea agreement.
The trial court made several findings of fact after hearing the parties’
arguments on sex offender registration:
In this particular case it seems that there were recordings
made over a long period of time. The fact that he only used
one device as opposed to two and to move it place to place
is to me more concerning than if he had had two devices,
because he had to make – each time he had to move the
device, he had to do an intentional act. You know, the
statement that this occurred because he was having
feelings for the victim, the – and the setup was apparently
much more sophisticated than [Guerrette] where someone
was just in a woman’s bathroom with a cell phone. By
having this secret device, moving – moving the secret
STATE V. FULLER
TYSON, J., concurring
device from room to room, the manner in which it was
stored, and the fact of the – as you said, anybody could get
anything on the internet, so it would make it easy for him
to buy similar devices off the internet once he’s – just make
it easier for him to buy these devices off the internet, Court
finds that he would be a danger to the community and the
purpose of the Registry Act would be served by requiring
him to register for a period of 30 years. If after 10 years he
has a clean record, certainly can petition to get off.
II. Standard of Review
The majority’s opinion asserts “this Court will review the trial court’s findings
to ensure that they are supported by competent evidence, and we review the
conclusions of law to ensure that they reflect a correct application of law to the facts.”
State v. Pell, 211 N.C. App. 376, 381, 712 S.E.2d 189, 192 (2011) (citation omitted).
While this standard of review requires a higher threshold for the State than an abuse
of discretion, the trial court’s ruling is also properly sustained and affirmed under an
abuse of discretion standard of review.
Based upon Defendant’s express agreement in his plea bargain that “sex
offender registration shall be determined by the court,” the trial court’s ruling is
properly reviewed for abuse of discretion. The defendant’s plea agreement in Pell did
not leave the issue of sex offender registration within the trial court’s discretion. Id.
at 376, 712 S.E.2d at 190. Here, Defendant acknowledged in his plea agreement, and
again in open court, for the trial court to exercise its discretion to determine whether
to order and the extent of Defendant’s sex offender registration.
2
STATE V. FULLER
TYSON, J., concurring
It is well established that where matters are left to the
discretion of the trial court, appellate review is limited to a
determination of whether there was a clear abuse of
discretion. A trial court may be reversed for abuse of
discretion only upon a showing that its actions are
manifestly unsupported by reason. A ruling committed to a
trial court’s discretion is to be accorded great deference and
will be upset only upon a showing that it was so arbitrary
that it could not have been the result of a reasoned
decision.
White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (emphasis supplied)
(citations omitted).
A proper review of the trial court’s findings and registration order is for abuse
of that discretion. Id. The ruling of the trial court is presumed to be correct. Hogsed
v. Pearlman, 213 N.C. 240, 243, 195 S.E. 789, 791 (1938). Defendant carries the
burden to show prejudicial error on appeal. N.C. Gen. Stat. § 15A-1443(a) (2017).
Defendant acknowledged in his plea agreement his sex offender registration “shall be
determined by” and within the discretion of the trial court. Defendant received the
full benefit of his plea bargain, had multiple other charges dismissed, and avoided an
active prison term and potential consecutive sentences.
III. Analysis
As noted in the majority’s opinion, the statute provides and the parties agree
Defendant pled guilty to an offense, which qualifies him as eligible to be registered
as a sex offender. N.C. Gen. Stat. § 14-202(l) (2017). For a defendant to be required
to register, a trial court must first determine: “(1) the defendant is a ‘danger to the
3
STATE V. FULLER
TYSON, J., concurring
community;’ and (2) the defendant’s registration would further the purpose” of the
Registry Act. Pell, 211 N.C. App. at 379, 712 S.E.2d at 191. The majority’s opinion
correctly notes Defendant fails to challenge or address this second factor, which the
trial court properly found in this case. Defendant’s argument rests solely upon the
trial court’s finding Defendant is a “danger to the community” under Pell’s less
deferential standard of review.
Under Pell, “ ‘danger to the community’ refers to those sex offenders who pose
a risk of engaging in sex offenses following release from incarceration or
commitment.” Id. The evidence brought forward by the State in Pell, which “tended
to address the manner in which Defendant committed his past offenses . . . . offered
very little in the way of predictive statements concerning Defendant’s likelihood of
recidivism.” Id. at 382, 712 S.E.2d at 193. Expert testimony in Pell consisted of “that
Defendant represented a low to moderate risk of re-offending,” “letters submitted by
Defendant’s psychiatrist and counselor,” and “statements made by several of
Defendant’s victims.” Id. at 381-82, 712 S.E.2d at 193.
Defendant argues the State has not brought forward evidence establishing the
requisite likelihood of his recidivism. Even under Pell’s requirement for the State to
show likelihood of recidivism with evidence beyond the manner of commission of the
offense, Defendant cannot show the trial court abused its discretion, which he
specifically agreed for the trial court to exercise in his plea bargain.
4
STATE V. FULLER
TYSON, J., concurring
Because Defendant “only used one device as opposed to two,” the trial court
found “each time he had to move the device [between the victim’s bedroom and
bathroom], he had to do an intentional act.” The court further found the Defendant
had used a “secret device.” While the number and surreptitious and concealed nature
of devices used, or the multiple acts of moving the device between the victim’s
bedroom and bathroom, may arguably be manner-of-commission evidence, the trial
court’s finding of Defendant’s intentionality is not and supports the trial court’s
ruling.
Defendant’s claim his secret and repetitive acts “occurred because he was
having feelings for the victim,” also suggests Defendant’s motive for his acts, which
is separate and distinct from his manner of committing the crimes. Defendant grossly
violated his relationship and position of trust and confidence as a close friend and
guest in the Smiths’ home to gain access to their most private and personal areas,
where individuals rightfully expect the highest levels of privacy to disrobe, bathe, and
engage in intimate bodily functions.
His multiple violations occurred over several months. Defendant sorted and
stored over fifty images of the victim in both moving and still media, to allow him to
review his “favorites” repeatedly and potentially share them with others.
Defendant’s egregious violations of the victim’s trust to gain access, his
repeated invasions of the Smiths’ most intimate private living areas over many
5
STATE V. FULLER
TYSON, J., concurring
months, his sorting and storing the images, his intent, motive, and future access to
the internet support the conclusion Defendant is a likely future recidivist and a
danger to the community.
The trial court’s “danger to the community” conclusion requires the court to
look at the evidence and factually determine likelihood of recidivism as a question of
fact. As a result, and as noted in the majority’s opinion, the “danger to the
community” determination is not entirely a question of law. As a question of fact, it
is possible that one judge could review the evidence to support a finding that the
defendant is a likely future recidivist and a danger to the community, whereas the
same or another judge making these same findings about a different defendant could
find a second defendant is not a danger to the community. See Mastor, 243 N.C. App.
at 482, 777 S.E.2d at 520. Both conclusions are clearly within the trial judge’s
permitted range of discretion. The trial court clearly reviewed the undisputed
evidence and articulated a reasoned decision within its discretion based upon the
facts here.
The trial court also exercised its discretion of lenity and ruled, “[i]f after 10
years he has a clean record, [he] certainly can petition to get off” the registry. If
Defendant is not a recidivist, as he claims, after ten years he can petition to be
removed from the registry. Defendant has failed to carry his burden on appeal that
the trial court’s agreed-upon discretionary ruling for Defendant to register as a sex
6
STATE V. FULLER
TYSON, J., concurring
offender is manifestly unsupported by reason, or so arbitrary that it could not have
been the result of a reasoned decision. White, 312 N.C. at 777, 324 S.E.2d at 833.
The trial court’s findings and conclusions also meet the more strict Pell
standard of review asserted in the majority’s opinion. The trial court’s ruling comes
before us with the presumption of being correct. Defendant cannot carry his burden
to show any error or that any error was prejudicial to his agreed-upon plea
agreement. Defendant’s appeal is wholly frivolous.
IV. Conclusion
The trial court’s finding Defendant was a danger to the community is not
manifestly unsupported by reason and its ruling for Defendant to register as a sex
offender is not shown to be an abuse of discretion. The trial court also properly found
and concluded “the purpose of the Registry Act would be served by requiring him to
register.” These findings fully comply with the requirements of the statute and are
supported by competent evidence. The trial court’s conclusions are supported by
unchallenged findings of fact.
The majority’s opinion uses a competent evidence standard of review from Pell
to affirm the trial court’s order. Given the terms of Defendant’s plea bargain, the
trial court’s order is also properly affirmed under the less demanding abuse of
discretion standard. I concur with the majority’s opinion and vote to affirm the trial
court’s order.
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No. COA19-243 – State v. Fuller
BROOK, Judge, dissenting.
I respectfully dissent. The governing statutory regime and our binding
precedent require reversal of the trial court’s order.
The Statutory Regime and Our Case Law
Our General Assembly has outlined a variety of offenses in N.C. Gen. Stat. §
14-208.6(4)(a) that constitute “reportable offenses” requiring sex offender registration
upon conviction. A conviction for secret peeping under N.C. Gen. Stat. § 14-202(d) is
not so designated. Instead of automatic registration, a trial court can order an
individual so convicted to register as a sex offender upon finding “that the person is
a danger to the community.” N.C. Gen. Stat. § 14-202(l) (2017).5 In assessing the
trial court’s imposition of sex offender registration, this Court reviews the trial court’s
findings to ensure that they are supported by competent evidence and reviews the
conclusions of law to ensure they reflect a correct application of law to the facts. State
v. Pell, 211 N.C. App. 376, 380-81, 712 S.E.2d 189, 192 (2011) (citing State v. Kilby,
198 N.C. App. 363, 367, 679 S.E.2d 430, 432 (2009)).
Our Court’s decision in Pell provides a roadmap for how we assess whether a
trial court rightly concluded an offender is a danger to the community such that sex
5 The provision in question also requires a finding that registration would further the purposes
of the registration program. Id. Defendant’s argument focuses on the “danger to the community”
finding; thus, my analysis is similarly tailored.
STATE V. FULLER
BROOK, J., dissenting
offender registration is warranted. “The phrase ‘danger to the community’ is not
defined” by the statute. Pell, 211 N.C. App. at 379, 712 S.E.2d at 191. Pell reasoned
an offender is a “danger to the community” if he “pose[s] a risk of engaging in sex
offenses following release from incarceration.” Id. at 379, 712 S.E.2d at 191.
Accordingly, our Court did not focus on “the manner in which Defendant committed
his past offenses” as such evidence “offered very little in the way of predictive
statements concerning Defendant’s likelihood of recidivism.” Id. at 381-82, 712
S.E.2d at 192-93. We instead looked forward, focusing on risk assessment evidence
showing that the defendant posed a low to moderate risk of re-offending and
testimony from the defendant’s psychiatrist and counselor assessing his major
depression, alcohol abuse, and paraphilia to be in remission. Id. at 381, 712 S.E.2d
at 193. Based on the evidence heard by the trial court, we held that the State had
not shown the defendant “represented a danger to the community” and reversed the
trial court’s imposition of registration. Id. at 382, 712 S.E.2d at 193.
Following Pell’s guidance, this Court reversed an imposition of sex offender
registration in State v. Guerrette, ___ N.C. App. ___, 818 S.E.2d 648, 2018 WL
4702230 (2018) (unpublished). On 4 July 2016, the defendant entered a women’s
restroom at Carolina Beach and used his cell phone to film six women for about eight
minutes. Id. The defendant pleaded guilty to two counts of secret peeping using a
photographic device, two counts of creating a photographic image while secretly
2
STATE V. FULLER
BROOK, J., dissenting
peeping, and two counts of knowingly possessing a photographic image created
through secretly peeping, and attaining the status of habitual felon. Id. at *2.
The trial court imposed a registration requirement, and this Court reversed.
Id. at *10. To show the defendant was a danger to the community, the State argued
that the defendant’s 20 prior felony convictions, mental health issues, and current
convictions supported the requisite “affirmative finding” that the defendant was a
danger to the community. Id. at *2-3. We rejected each of these arguments in turn.
First, the “defendant’s non-violent, non-sexual prior convictions do not indicate
an increased risk he would commit another sexual offense.” Id. at *7.
Second, the “[d]efendant’s mental health issues may show he is a danger to
the community if the State is able to show that those issues led [the] [d]efendant to
have an increased risk of engaging in sex offenses after incarceration.” Id. at *8
(emphasis in original). The State had offered no evidence connecting the defendant’s
diagnoses of schizophrenia, schizoaffective disorder, bipolar tied to social anxiety
disorder, panic disorder, and post-traumatic stress disorder to an increased risk of
committing sex offenses. Id.
Finally, as noted above, a conviction under N.C. Gen. Stat. §§ 14-202(d) does
not constitute a “reportable offense” requiring registration. “[R]ather[,] an additional
showing is required that a defendant is a danger to the community.” Id. at *9. Our
Court reasoned “[i]f the General Assembly had intended that a conviction for peeping
3
STATE V. FULLER
BROOK, J., dissenting
– in and of itself – would show that a defendant was a danger to the community, it
would have included such offense in N.C.G.S. § 14-208.6(4)(a)[,]” amongst offenses
requiring registration. Id.
Assessing the Facts of the Current Controversy
It bears repeating that on appeal, this Court “reviews the conclusions of law to
ensure they reflect a correct application of law to the facts.” Pell, 211 N.C. App. at
380-81, 712 S.E.2d at 192 (emphasis added). To an even greater extent than Pell or
Guerrette, the trial court here focused its “danger to the community” analysis on how
the crimes were committed. In rendering its order, the trial court first noted the
window in which the recordings were made – from June through mid-August 2018.
It reasoned that Defendant’s use of one device was more troubling than if he had used
multiple devices as “each time he . . . move[d] the device” between the bathroom and
bedroom “he had to do an intentional act.” The trial court then observed the setup
was “more sophisticated than [Guerrette] where someone was just in a woman’s
bathroom with a cell phone.” Finally, the court stated, “anybody could get anything
on the [I]nternet” and presumably it would be “easy for [Defendant] to buy similar
devices off the [I]nternet.”
These facts “address the manner in which Defendant committed his past
offenses[,]” but “offer very little in the way of predictive [evidence] concerning
Defendant’s likelihood of recidivism.” Pell, 211 N.C. App. at 382, 712 S.E.2d at 193.
4
STATE V. FULLER
BROOK, J., dissenting
The fact that Defendant moved the camera in question, the sophistication of the
technology employed, and its easy availability—none of this aids in answering the
critical question of whether Defendant is likely to re-offend. See id. at 381, 712 S.E.2d
at 192. In a similar vein, the trial court focused on the window in which filming
occurred—three months—in imposing registration. Again, the connection of this fact
to the likelihood of future recidivism is tenuous at best.6 And simply convicting
Defendant of the offense of secret peeping, of course, does not prove the requisite
danger to the community. See Guerrette, at *9.
The evidence of Defendant’s likelihood of recidivism, the lodestar of the
requisite danger to the community analysis, borders on non-existent here. While a
risk assessment tool may have provided some insight into Defendant’s likelihood to
re-offend, see Guerrette, at *6 (“[T]he absence of a risk assessment or expert testimony
fails to support that Defendant poses a risk of committing sex offenses upon release
from incarceration.”), the trial court here refused Defendant’s request for a Static 99
assessment. And the scant record evidence that is arguably pertinent tends to point
6 A review of the record in Pell shows the grand jury returned 16 bills of indictment against
the defendant for secretly peeping on his employees and neighbor for nearly 16 years. R. at 46, State
v. Pell, 211 N.C. App. 376, 712 S.E.2d 189 (2011) (COA10-415). The defendant pleaded guilty to eight
counts of secret peeping spanning four years. R. at 52, State v. Pell, 211 N.C. App. 376, 712 S.E.2d 189
(2011) (COA10-415). Despite this, this Court held the record evidence did not support the imposition
of sex offender registration given the defendant’s evidence showed he was not likely to recidivate and
thus was not a “danger to the community.” See Pell, 211 N.C. App. at 381-82, 712 S.E.2d at 192-93.
5
STATE V. FULLER
BROOK, J., dissenting
in the opposite direction: for example, Defendant has no prior convictions, no history
of mental health or substance abuse issues, and cooperated with law enforcement.
The majority and concurring opinions recognize the trial court’s cardinal
misstep and then promptly repeat it. Both opinions nod toward Pell’s admonition
that the manner of the offense “offer[s] very little in the way of predictive statements
concerning the likelihood of recidivism.” Supra at ___; supra at ___ (Tyson, J.,
concurring) (noting “Pell’s requirement for the State [to] show likelihood of recidivism
with evidence beyond the manner of commission of offense”). And both then flout this
governing precedent by focusing their inquiry on the nature of the offense at hand.
Supra at ___; supra at ___ (Tyson, J., concurring). Even efforts at distinction are
merely return trips to forbidden ground. Supra at ___ (“Here, Defendant’s manner of
committing his crime was much more sophisticated and stealthier than in Pell.”).
More than failing to abide by the statutory regime and case law, the majority
inverts the approach of the controlling authority. Where both call for evidence that
a defendant is a danger to the community beyond the simple fact of conviction, the
majority repeatedly points to the absence of evidence (even when Defendant sought
to fill the vacuum). For example, while noting the defendant in Pell “was only a low
to moderate risk” for recidivism according to test results, the majority fails to mention
that the trial court rejected Defendant’s request for such testing in this case. Supra
at ___. Relatedly, the majority closes by noting “there is no indication that
6
STATE V. FULLER
BROOK, J., dissenting
[Defendant] will not develop a crush on a wife or girlfriend of a close friend in the
future.” Supra at ___. One can abhor Defendant’s criminal betrayal while also
concluding that such reasoning stands our precedent’s inquiry into “predictive
[evidence] concerning Defendant’s likelihood of recidivism” on its head. Pell, 211 N.C.
App. at 382, 712 S.E.2d at 193.
Conclusion
In many ways, this case is quite distinct from Pell and Guerette. The State
could point to four years of offenses in Pell; the offenses at issue here span less than
three months. The State in Guerette highlighted defendant’s criminal record and
history of mental health challenges; there is no similar backstory here. But these
cases are similar in the most salient aspect: the State has not brought forward
evidence establishing the requisite likelihood of future offense. In the absence of such
a showing, I would reverse the trial court’s order requiring Defendant to register as
a sex offender and remand for resentencing.
With respect, I dissent.
7