Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/22/2021
E.g., 09/22/2021

While living with family friends in Wake County, the defendant placed a secret camera in various rooms at different times to record an adult female occupant. He later pled guilty to one count of felony secret peeping. Under the peeping statute, G.S. 14-202(l), the defendant may be required to register as a sex offender for a qualifying conviction (or subsequent conviction) if the court determines the defendant is a danger to the community and that the purposes of the sex offender registration program would be served by requiring the defendant to register. Under G.S. 14-208.5, the purposes of the registration program are to provide law enforcement and the public with information about sex offenders and those who commit crimes against children in order to protect communities. The trial court found that the defendant was a danger to the community and ordered him to register as a sex offender for 30 years. The trial court did not order a Static-99 assessment of the defendant and no evidence was presented regarding the defendant’s likelihood of recidivism. A divided Court of Appeals affirmed (that decision is summarized here) and the defendant appealed.

Reviewing G.S. 14-202(l) de novo, a majority of the court affirmed. It rejected the idea that a Static-99 or evidence of likely recidivism was required to support the finding of dangerousness: “[N]either a Static-99 assessment, nor considerations of likelihood of recidivism, are dispositive on the issue of whether a defendant ‘is a danger to the community.’” Fuller Slip op. at 8. The court looked to the involuntary commitment statutes for guidance on how to evaluate a defendant’s “danger to the community.” Under those statutes, danger to self or others is determined by examining not only the respondent’s current circumstances, but also the person’s “conduct within the relevant past and [whether there is] a reasonable probability of similar conduct within the near future.” Id. at 9 (cleaned up). Thus, a finding that the defendant poses a danger to the community for purposes of G.S. 14-202(l) may be based on the defendant’s current dangerousness or on conduct in the “relevant past” that reflects a “reasonable probability of similar conduct . . . in the near future.” Id. at 10. The trial court found (and the Court of Appeals agreed) that the defendant was a danger to the community based on numerous factors. These included his taking advantage of a personal relationship to commit the crime, the “sophisticated scheme” employed to accomplish the crime, the period of time over which the crime occurred, and the “ease with which the defendant could commit similar crimes in the future,” among other factors. Id. at 11. While the trial court’s finding that the defendant lacked remorse was unsupported by the record, the remaining factors found by the trial court were sufficient to establish the defendant’s dangerousness. 

Justice Earls dissented. According to her opinion, the majority contravened precedent requiring the State to show a likelihood of reoffending and disregarded the legislative intent of the registration statutes. She would have found that the trial court reversibly erred by failing to determine the defendant’s risk of recidivism. [Jamie Markham blogged in part about nonautomatic sex offender registration here.]

On March 21, 2018, the defendant pled guilty in Wake County Superior Court to felony secret peeping in violation of G.S. 14-202(e). Pursuant to a plea agreement, the defendant was placed on four years of supervised probation. Among other conditions, the defendant was not permitted to be unsupervised around children under the age of 14. The trial judge conducted a separate hearing the same day on whether the defendant would be required to register as a sex offender pursuant to G.S. 14-202(l). The trial court opted, in light of the defendant’s age, to give him a chance to show that he was not a danger to the community. The court announced that there would be a hearing in 12 months to see whether the defendant was in compliance with probation. The parties agreed to a subsequent hearing, which they agreed could be accelerated for noncompliance. 

On December 1, 2018, the defendant was arrested in New Hanover County for felony secret peeping. Three days later, the State notified the defendant that based on his recent arrest he should be required to register for his Wake County conviction and that his registration hearing was being accelerated. On December 20, 2018, the defendant appeared in Wake County Superior Court before a superior court judge who was not the sentencing judge in the original Wake County case. The judge ordered the defendant to register as a sex offender for 30 years. 

(1) The defendant argued on appeal that the trial court lacked jurisdiction over the December 20 hearing because the presiding judge was not the “sentencing court” as contemplated by G.S. 14-202(l). 

The court of appeals rejected the defendant’s argument, noting that the defendant agreed to a subsequent hearing, which he agreed could be accelerated, and agreed that he would not be unsupervised around any children under the age of 14. Thus, when he was arrested for felony secret peeping involving a nine-year-old child, he was in violation of the terms of his probation, and his hearing could be accelerated pursuant to the plea agreement. In addition, the State notified the defendant that it was accelerating his registration hearing, and the issues before the court in that hearing were to determine in the first instance whether the defendant was a danger to the community and whether his registration would further the purpose of the registration scheme. On these facts, the appellate court determined that Wake County Superior Court retained jurisdiction over the defendant’s second hearing and affirmed its order.

(2) The trial court erroneously checked box 1(b) on form AOC-CR-615 (the sex offender registration determination form), indicating the defendant was convicted of a sexually violent offense rather than box 1(d), to indicate that the defendant was convicted of felony secret peeping. The court of appeals remanded the matter to the trial court for the limited purpose of correcting that error.

Using a hidden camera built into a phone charger, the defendant made secret recordings of the woman in whose house he lived. He pled guilty to secret peeping under G.S. 14-202, but challenged the trial court’s finding that he was a “danger to the community” and had to register as a sex offender under G.S. 14-202(l). The trial court made its determination based on findings that the defendant: (1) made recordings over a long period of time (more than two months); (2) used sophisticated technology; (3) invaded the victim’s private space (her bathroom and bedroom) on multiple occasions to move the camera between them; (4) stored his recordings; and (5) could easily repeat the crime because the recording devices were cheap and easily obtainable. A divided court of appeals affirmed, concluding that the trial court’s findings supported its determination that the defendant was a person who “posed a risk of engaging in sex offenses following release from incarceration or commitment”—the standard for “danger to the community” articulated in State v. Pell, 211 N.C. App. 376 (2011). The court of appeals distinguished this case from Pell, noting that the crime here was more sophisticated and took advantage of a position of trust, and that unlike in Pell there was no indication here that the underlying cause of the defendant’s behavior was in remission or that he was moving in the right direction. A concurring judge would have affirmed the trial court under a less demanding abuse-of-discretion standard. A dissenting judge would have reversed based on the trial court’s focus on defendant’s past offenses and the lack of evidence of the likelihood of recidivism.

Using a hidden camera built into a phone charger, the defendant made secret recordings of the woman in whose house he lived. He pled guilty to secret peeping under G.S. 14-202, but challenged the trial court’s finding that he was a “danger to the community” and had to register as a sex offender under G.S. 14-202(l). The trial court made its determination based on findings that the defendant: (1) made recordings over a long period of time (more than two months); (2) used sophisticated technology; (3) invaded the victim’s private space (her bathroom and bedroom) on multiple occasions to move the camera between them; (4) stored his recordings; and (5) could easily repeat the crime because the recording devices were cheap and easily obtainable. A divided court of appeals affirmed, concluding that the trial court’s findings supported its determination that the defendant was a person who “posed a risk of engaging in sex offenses following release from incarceration or commitment”—the standard for “danger to the community” articulated in State v. Pell, 211 N.C. App. 376 (2011). The court of appeals distinguished this case from Pell, noting that the crime here was more sophisticated and took advantage of a position of trust, and that unlike in Pell there was no indication here that the underlying cause of the defendant’s behavior was in remission or that he was moving in the right direction. A concurring judge would have affirmed the trial court under a less demanding abuse-of-discretion standard. A dissenting judge would have reversed based on the trial court’s focus on defendant’s past offenses and the lack of evidence of the likelihood of recidivism.

State v. Pell, 211 N.C. App. 376 (Apr. 19, 2011)

(1) G.S. 14-202(l) (requiring sex offender registration for certain peeping offenses when a judge finds, in part, that the defendant is “a danger to the community”) is not unconstitutionally vague. (2) The trial court erred by requiring the defendant to register as a sex offender when there was no competent evidence to support a finding that he was a danger to the community. “A danger to the community” refers to those defendants who pose a risk of engaging in sex offenses following release from incarceration. Here, the State’s expert determined that the defendant represented a low to moderate risk of re-offending and acknowledged that his likelihood of re-offending may be even lower after considering a revised risk assessment scale. The trial court also reviewed letters from the defendant's psychiatrist and counselor opining that the defendant’s prior diagnoses of major depression, alcohol abuse, and paraphilia were in remission.

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