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., 09/21/2021
E.g., 09/21/2021
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.

The court affirmed the trial court’s denial of the petitioner’s petition to be removed from the sex offender registry. The trial court found that the requested relief did not comply with federal law. On appeal, the court rejected the petitioner’s argument that the trial court violated his substantive due process rights by denying his petition for termination of sex offender registration after finding that he “is not a current or potential threat to public safety.” Specifically, the petitioner argued after the trial court found that he was not a current or potential threat to public safety, it was arbitrary for the trial court to deny his petition and to require him to continue to register because of federal standards incorporated into state law. The court also rejected the petitioner’s argument that the retroactive application of federal sex offender registration standards violates ex post facto protections. Citing its prior cases on point, the court rejected this argument.

The trial court lacked jurisdiction to reconsider the petitioner’s request to terminate sex offender registration where the State failed to oppose termination at the initial hearing and did not appeal the initial order. At the initial hearing the trial court granted the defendant’s motion to terminate registration. At that hearing, the assistant district attorney representing the State chose not to put on any evidence or argue in opposition to termination. At a rehearing on the matter, held after an assistant attorney general representing the North Carolina Division of Criminal Information wrote to the judge suggesting that the judge had incorrectly concluded that termination of registration complies with the Jacob Wetterling Act, the judge reversed course and denied petition. It was this amended order that was at issue on appeal. The court found that the letter submitted to the trial judge by the assistant attorney general did not vest the trial court with jurisdiction to review the termination order for errors of law.

In re Hall, 238 N.C. App. 322 (Dec. 31, 2014)

(1) The trial court did not err by relying on the federal SORNA statute to deny the defendant’s petition to terminate his sex offender registration. The language of G.S. 14-208.12A shows a clear intent by the legislature to incorporate the requirements of SORNA into NC’s statutory provisions governing the sex offender registration process and to retroactively apply those provisions to sex offenders currently on the registry. (2) The retroactive application of SORNA does not constitute an ex post facto violation. The court noted that it is well established that G.S. 14-208.12A creates a “non-punitive civil regulatory scheme.” It went on to reject the defendant’s argument that the statutory scheme is so punitive as to negate the legislature’s civil intent.

In re Bunch, 227 N.C. App. 258 (May. 21, 2013)

(1) On the State’s appeal from the trial court order terminating the defendant’s sex offender registration, the court noted that when a defendant seeks to be removed from the registry because he was erroneously required to register, the more appropriate avenue for relief is a declaratory judgment; however, it found that a declaratory judgment is not the exclusive avenue for relief. It continued:

But we would caution that those who seek to terminate registration as a sex offender under N.C. Gen. Stat. § 14-208.12A, for any reason other than fulfillment of the ten years of registration and other requirements of N.C. Gen. Stat. § 14-208.12A in the future will probably not succeed if the State does raise any objection or argument in opposition to the request.

(2) The fact that a person has not actually registered for 10 years in NC does not deprive the trial court of jurisdiction to rule on a petition to terminate.

In re McClain, 226 N.C. App. 465 (Apr. 16, 2013)

The court rejected the defendant’s argument that the trial court erred by denying his petition for removal from the sex offender registry because the incorporation of the Adam Walsh Act and SORNA into G.S. 14-208.12A(a1)(2) was an unconstitutional delegation of legislative authority. The court reasoned in part that “[s]imply defining when particular conduct is unlawful by reference to an external standard . . . has not been deemed an unconstitutional delegation of legislative authority.”

In re Dunn, 225 N.C. App. 43 (Jan. 15, 2013)

Holding, in a case in which the trial court denied the defendant’s motion to terminate his sex offender registration, that the superior court did not have jurisdiction to enter its order. Under G.S. 14-208.12A(a), a petition to terminate must be filed in the district where the person was convicted. Here, the defendant was convicted in Montgomery County but filed his petition to terminate in Cumberland County.

(1) Amendments to the sex offender registration scheme’s period of registration and automatic termination provision made after the defendant was required to register applied to the defendant. When the defendant was required to register in 2001, he was subject to a ten-year registration requirement which automatically terminated if he did not re-offend. In 2006 the registration statutes were amended to provide that registration could continue beyond ten years, even when the registrant had not reoffended. Also, the automatic termination language was deleted and a new provision was added providing that persons wishing to terminate registration must petition the superior court for relief. The court held that both legislative changes applied to the defendant. (2) The trial court erred by finding that the defendant’s removal from the registry would not comply with the federal Adam Walsh Act.

The State could not appeal an order terminating the defendant’s sex offender registration requirement when it had consented to the trial court’s action. The court rejected the State’s argument that the trial court lacked jurisdiction to terminate the defendant because he had not been registered for 10 years.

The trial court erred by terminating the petitioner’s sex offender registration. G.S. 14-208.12A provides that 10 years “from the date of initial county registration,” a person may petition to terminate registration. In this case the convictions triggering registration occurred in 1995 in Kentucky. In 2010, after having been registered in North Carolina for approximately 1½ years, the petitioner received notice from Kentucky that he was no longer required to register there. He then filed a petition in North Carolina to have his registration terminated. The court concluded that the term “initial county registration” means the date of initial county registration in North Carolina, not the initial county registration in any jurisdiction. Since the petitioner had not been registered in North Carolina for at least ten years, the trial court did not have authority under G.S. 14-208.12A to terminate his registration.

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