State v. Anderson, ___ N.C. App. ___, 804 S.E.2d 189 (Aug. 1, 2017)

(1) The evidence was insufficient to support a conviction under G.S. 14-208.18(a)(1), for being a sex offender on the premises of a daycare. The defendant was seen in a parking lot of a strip mall containing a daycare, other businesses, and a restaurant. Next-door to the daycare was a hair salon; next to the hair salon was a tax business. The three businesses shared a single building as well as a common parking lot. A restaurant in a separate, freestanding building shared the same parking lot. None of the spaces in the parking lot were specifically reserved or marked as intended for the daycare. The daycare, including its playground area, was surrounded by a chain-link fence. The court agreed with the defendant that the State failed to present sufficient evidence that the shared parking lot was part of the premises of the daycare. It stated: “[T]he shared parking lot is located on premises that are not intended primarily for the use, care, or supervision of minors. Therefore, we conclude that a parking lot shared with other businesses (especially with no designation(s) that certain spaces “belong” to a particular business) cannot constitute “premises” as set forth in subsection (a)(1) of the statute.” (2) The defendant’s guilty plea to unlawfully being within 300 feet of a daycare must be vacated in light of a Fourth Circuit’s decision holding G.S. 14-208.18(a)(2) to be unconstitutional. The defendant was indicted and pled guilty to violating G.S. 14-208.18(a)(2), which prohibits certain persons from being within 300 feet a location intended primarily for the use, care, or supervision of minors. While his direct appeal was pending, the Fourth Circuit held that statute to be unconstitutionally overbroad in violation of the First Amendment. Thus the conviction must be vacated.