State v. Moir ( 2014 )

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.