State v. Moir, 369 N.C. 370 (Dec. 21, 2016)

In determining whether the defendant’s convictions for taking indecent liberties with a child suffice to make him a Tier II offender as defined in 42 U.S.C. § 16911(3)(A)(iv), the court held that it was required to utilize the categorical approach, as supplemented by the “modified categorical approach” in the event that the defendant was convicted of violating a divisible statute. However, the court concluded that because it did not have the benefit of briefing and argument concerning numerous legal questions of first impression which must be resolved in order to determine the defendant’s eligibility for removal from the registry, remand was required. It noted, among other things, that the trial court failed to determine whether the statute was a divisible one and whether a conviction requires proof that the defendant intentionally touched the victim in a specified manner. The court thus affirmed the Court of Appeals’ decision that the trial court erred by applying the circumstance-specific approach in determining whether the defendant should be deemed eligible to terminate registration. However, it modified the Court of Appeals’ decision to require the use of the modified categorical approach rather than the pure categorical approach in cases involving divisible statutes and remanded to the trial court for further proceedings. It specifically instructed:

On remand, the trial court should consider whether N.C.G.S. § 14-202.1 is a divisible statute. If the trial court deems N.C.G.S. § 14-202.1 to be divisible, it must then consider whether guilt of any separate offense set out in N.C.G.S. § 14-202.1(a)(2) requires proof of a physical touching and whether any such physical touching requirement necessitates proof that the defendant “intentional[ly] touch[ed], either directly or through the clothing, [ ] the genitalia, anus, groin, breast, inner thigh, or buttocks of” the victim. Finally, if guilt of any separate offense set out in N.C.G.S. § 14-202.1(a)(2) requires proof that defendant “intentional[ly] touch[ed], either directly or through the clothing, [ ] the genitalia, anus, groin, breast, inner thigh, or buttocks of” the victim, the trial court must determine whether any document that the trial court is authorized to consider under Shepard permits a determination that defendant was convicted of violating N.C.G.S. § 14-202.1(a)(2) rather than any specific offense set out in N.C.G.S. § 14-202.1(a)(1) or any generic offense made punishable pursuant to N.C.G.S. § 14-202.1(a). Finally, if necessary, the trial court should consider, in the exercise of its discretion, whether it should terminate defendant’s obligation to register as a sex offender.