In re: Terrell McIlwain

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-336
No. COA21-434
Filed 17 May 2022
Forsyth County, No. 20CRS1733
IN THE MATTER OF:
TERRELL McILWAIN, Petitioner.
Appeal by Petitioner from order entered 22 March 2021 by Judge David L. Hall
in Forsyth County Superior Court. Heard in the Court of Appeals 9 February 2022.
Appellate Defender Glenn Gerding and Assistant Appellate Defender Andrew
DeSimone for Petitioner-Appellant.
Attorney General Joshua H. Stein, by Assistant Attorney General Alex R.
Williams, for the State-Appellee.
COLLINS, Judge.
¶1 Petitioner Terrell McIlwain appeals the trial court’s order requiring him to
register in North Carolina as a sex offender based on a Texas conviction for possession
or promotion of lewd visual material depicting a child. Petitioner argues that the
trial court erred by concluding that the Texas offense of possession or promotion of
lewd visual material depicting a child is substantially similar to the North Carolina
offense of second-degree exploitation of a minor. We conclude that the offenses are
substantially similar and we affirm the trial court’s order.
IN RE MCILWAIN
2022-NCCOA-336
Opinion of the Court
I. Background
¶2 Petitioner Terrell McIlwain was convicted in July 2020 of possession or
promotion of lewd visual material depicting a child, under Texas Penal Code § 43.262
(“Texas offense”). Petitioner was notified in December 2020 that he was required by
law to register in North Carolina as a sex offender, based on his out-of-state
conviction, and of his right to contest the requirement to register.
¶3 Petitioner filed a petition, pursuant to N.C. Gen. Stat. § 14-208.12B, contesting
his required registration. The matter came on for hearing on 22 March 2021. The
trial court found the Texas offense was substantially similar to the North Carolina
offense of second-degree exploitation of a minor, under N.C. Gen. Stat. § 14-190.17(a)
(“North Carolina offense”), a conviction requiring a person to register in North
Carolina as a sex offender. The trial court entered a written order requiring
Petitioner to register as a sex offender.
¶4 Petitioner timely appealed.
II. Discussion
¶5 Petitioner argues the trial court erred by finding that the Texas offense is
substantially similar to the North Carolina offense and thus, erred by ordering him
to register as a sex offender.
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Opinion of the Court
A. Standard of Review
¶6 Whether an out-of-state offense is substantially similar to a North Carolina
offense is a question of law, reviewed de novo on appeal. State v. Fortney, 201 N.C.
App. 662, 669, 687 S.E.2d 518, 524 (2010).
B. Analysis
¶7 A conviction requiring a person to register in North Carolina as a sex offender
(“reportable conviction”) includes “[a] final conviction in another state of an offense,
which if committed in this State, is substantially similar to an offense against a minor
or a sexually violent offense” as defined in Section 14-208.6(5). N.C. Gen. Stat.
§ 14-208.6(4)(b) (2020). Second-degree sexual exploitation of a minor is a sexually
violent offense. See id. §§ 14-208.6(5), 14-190.17 (2020). When a person files a
petition for a judicial determination regarding whether they must register in North
Carolina as a sex offender based on an out-of-state conviction, the trial court must
determine whether the conviction for the out-of-state offense “is substantially similar
to a reportable conviction” in North Carolina. Id. § 14-208.12B(d) (2020). At the
hearing on the petition, the State “has the burden to prove by a preponderance of the
evidence, that the person’s out-of-state . . . conviction is for an offense, which if
committed in North Carolina, was substantially similar to a sexually violent offense,
or an offense against a minor.” Id. § 14-208.12B(c) (2020). “The person may present
evidence in support of the lack of substantial similarity between the out-of-state”
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Opinion of the Court
offense and the North Carolina offense, and “[t]he court may review copies of the
relevant out-of-state . . . criminal law and compare the elements of the out-of-state
. . . offense to those purportedly similar to a North Carolina offense.” Id. “If the
presiding superior court judge determines the out-of-state . . . conviction is
substantially similar to a reportable conviction, the judge shall order the person to
register as a sex offender[.]” Id. § 14-208.12B(d).
¶8 The determination of whether an out-of-state conviction is for an offense that
is substantially similar to a North Carolina offense “is a question of law involving
comparison of the elements of the out-of-state offense to those of the North Carolina
offense.” State v. Sanders, 367 N.C. 716, 720, 766 S.E.2d 331, 334 (2014) (quotation
marks and citation omitted) (analyzing the similarity between an out-of-state statute
and a North Carolina statute in the context of sentencing points for prior convictions).
We do not “look beyond the elements of the offenses” to consider the underlying facts
of a defendant’s out-of-state conviction or the legislative purpose of the respective
statutes defining the offenses. Id. at 719, 766 S.E.2d at 333. The requirement set
forth in N.C. Gen. Stat. § 14-208.12B(d) “is not that the statutory wording precisely
match, but rather that the offense be ‘substantially similar.’” State v. Sapp, 190 N.C.
App. 698, 713, 661 S.E.2d 304, 312 (2008).
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Opinion of the Court
¶9 In Texas, a person commits the offense of possession or promotion of lewd
visual material depicting a child
if the person knowingly possesses, accesses with intent to
view, or promotes visual material that:
(1) depicts the lewd exhibition of the genitals or pubic area
of an unclothed, partially clothed, or clothed child who is
younger than 18 years of age at the time the visual
material was created;
(2) appeals to the prurient interest in sex; and
(3) has no serious literary, artistic, political, or scientific
value.
Tex. Penal Code § 43.262(b) (2020).
¶ 10 In comparison, in North Carolina, a person commits the offense of second-
degree sexual exploitation of a minor
if, knowing the character or content of the material, he:
(1) Records, photographs, films, develops, or duplicates
material that contains a visual representation of a minor
engaged in sexual activity; or
(2) Distributes, transports, exhibits, receives, sells,
purchases, exchanges, or solicits material that contains a
visual representation of a minor engaged in sexual activity.
N.C. Gen. Stat. § 14-190.17 (2020). The definition of “sexual activity” includes the
“lascivious exhibition of the genitals or pubic area of any person.”
Id. § 14-190.13(5)(g) (2020). The term “lascivious” has been defined as “tending to
arouse sexual desire.” State v. Corbett, 264 N.C. App. 93, 100, 824 S.E.2d 875, 880
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(2019) (citations omitted).
¶ 11 Both offenses include an element of the defendant’s knowledge. Furthermore,
the “visual material” prohibited in Texas is nearly identical to the “visual
representation” prohibited in North Carolina: both graphically depict the genital or
pubic area of a child who is under the age of 18 in a manner that appeals to and
arouses sexual desires. See The American Heritage Dictionary 771 (5th ed. 2022)
(defining “lewd” as “preoccupied with sex and sexual desire; lustful; obscene;
indecent”; and defining “lascivious” as “given to or expressing lust . . . exciting sexual
desires; salacious”). Moreover, the criminalized behavior of possessing, accessing
with intent to view, or promoting the “visual material” in Texas is comparable to the
criminalized behavior of recording, photographing, filming, developing, duplicating,
distributing, transporting, exhibiting, receiving, selling, purchasing, exchanging, or
soliciting the “visual representation” in North Carolina. Based on a comparison of
the elements of the Texas offense of possession or promotion of lewd visual material
depicting a child and the North Carolina offense of second-degree sexual exploitation
of a minor, we hold that the two offenses are substantially similar.
¶ 12 Our holding is in line with State v. Graham, wherein the North Carolina
Supreme Court determined that the defendant’s conviction for the Georgia offense of
statutory rape was substantially similar to a North Carolina Class B1 felony for the
purpose of calculating prior record level points for criminal sentencing. 379 N.C. 75,
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2021-NCSC-125, ¶ 18. The Supreme Court compared the elements of the two offenses
and agreed with this Court “that the trial court did not err in finding the two offenses
substantially similar as Ga. Code Ann. § 16-6-3 outlaws statutory rape of a person
who is under the age of sixteen and N.C. [Gen. Stat.] § 14-27.25 prohibits statutory
rape of a person who is fifteen years of age or younger.” Id. at ¶ 8 (quotation marks
and citation omitted). The Court then addressed the defendant’s argument that
the Georgia statutory rape statute and the North Carolina
statutory rape statute are not substantially similar in
addressing the criminal offenses which they respectively
prohibit in that there is no age difference element in the
Georgia law, because unlike the North Carolina law which
identifies specific age differences in its felony
classifications, defendant notes that “the Georgia statute
applies equally to all persons under the age of 16 years.”
He expounds upon this “lack of an age difference element
in the Georgia statutory rape statute” by offering
hypothetical examples of sexual intercourse which he
posits would constitute the offense of statutory rape in
Georgia but would not constitute the offense of statutory
rape in North Carolina. Defendant submits that in a
comparison of a North Carolina statute with another
state’s statute in order to determine substantial similarity
between the two, if the difference between the two statutes
renders the other state’s law narrower or broader, “or if
there are differences that work in both directions, so that
each statute includes conduct not covered by the other,
then the two statutes will not be substantially similar for
purposes of the statute.” Additionally, defendant asserts
that the Georgia law under examination here is not
substantially similar to the North Carolina enactment to
which it is being paralleled because the Georgia law can be
violated “by conduct that is only a Class C felony . . . in
North Carolina.”
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Id. at ¶ 10. The Court found these arguments “unpersuasive,” and explained as
follows:
Defendant’s position conflates the requirement that
statutes subject to comparison be substantially similar to
one another with his erroneous perception that the two
statutes must have identicalness to each other. As we
previously noted in our recognition of Sapp, 190 N.C. App.
at 713, 661 S.E.2d 304, the statutory wording of the
Georgia provision and the North Carolina provision do not
need to precisely match in order to be deemed to be
substantially similar. Likewise, defendant’s stance that
the Georgia statute and the North Carolina statute cannot
be considered to be substantially similar because not every
violation of the Georgia law would be tantamount to the
commission of a Class B1 felony under the comparative
North Carolina law is unfounded.
Id. at ¶ 11. The Court further expounded as follows:
There are so many iterations of so many similar laws
written in so many different ways, in North Carolina and
in the forty-nine other states in America, that the courts of
this state must necessarily possess the ability to operate
with the flexibility that the phrase “substantially similar”
inherently signifies in determining whether statutes which
are being compared share the operative elements in the
evaluation. While such an exercise is predictably
challenging, we are confident that the courts of this state
have sufficient guidance and flexibility to properly conduct
the prescribed analysis of the statutes’ respective elements.
Id. at ¶ 16.
¶ 13 Petitioner raises similar arguments to those rejected in Graham. First,
Petitioner argues that the Texas offense is not substantially similar to the North
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Carolina offense because the Texas offense prohibits a visual depiction of the “lewd
exhibition of the genitals or pubic area of [a] . . . clothed child” while the North
Carolina statute, which prohibits the “lascivious exhibition of the genitals or pubic
area of any person,” does not apply to the “mere exhibition of the genitals or pubic
area of a clothed child.” We disagree for two reasons. First, according to its plain
terms, the statute applies to the “lascivious exhibition of the genitals or pubic area of
any person” and nothing in these terms limits its application to the exhibition of the
genitals or pubic area of a clothed child. “[I]t is our duty to give effect to the words
actually used in a statute and not to delete words used or to insert words not used.”
State v. Heelan, 263 N.C. App. 275, 281, 823 S.E.2d 106, 111 (2018) (citation omitted).
Furthermore, even if the North Carolina statute does not apply to visual depictions
of the genitals or pubic area of a clothed child, substantial similarity between the two
offenses is not a “requirement of exactitude.” Graham, 2021-NCSC-125, ¶ 12.
¶ 14 Petitioner also argues that the offenses are not substantially similar because
the Texas statute applies to any “child who is younger than 18 years of age,”
Tex. Penal Code § 43.262(b)(1), while the North Carolina statute applies to any child
younger than eighteen who is “not married or judicially emancipated,” N.C. Gen. Stat.
§ 14-190.13(3) (2020).1 “Defendant’s position conflates the requirement that statutes
1 The definition of “minor” in North Carolina is “[a]n individual who is less than 18
years old and is not married or judicially emancipated.” N.C. Gen. Stat. § 14-190.13(3).
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subject to comparison be substantially similar to one another with his erroneous
perception that the two statutes must have identicalness to each other.” Graham,
2021-NCSC-125, ¶ 11. The statutory wording of the Texas statute and the North
Carolina statute “do not need to precisely match in order to be deemed to be
substantially similar.” Id.III. Conclusion
¶ 15 The “obvious essential pertinent parallels” between the Texas offense and the
North Carolina offense lead us to hold that the possession or promotion of lewd visual
material depicting a child under Texas Penal Code § 43.262 is substantially similar
to second-degree exploitation of a minor under N.C. Gen. Stat. § 14-190.17. See
Graham, 2021-NCSC-125, ¶ 12. Accordingly, we affirm the trial court’s order
requiring Petitioner to register in North Carolina as a sex offender.
AFFIRMED.
Judges ZACHARY and CARPENTER concur.