State v. Fryou, 244 N.C. App. 112 (Nov. 17, 2015)

(1) In a case involving charges under G.S. 14-208.18(a) (sex offender being present at a location used by minors, here a church preschool), where the State was required to prove (in part) that the defendant was required to register as a sex offender and was so required because of a conviction for an offense where the victim was less than 16 years old, the age of the victim was a factual question to which the defendant could stipulate. (2) The trial court did not err by denying the defendant’s motion to dismiss, which had asserted that the State failed to produce substantial evidence that the defendant knew that a preschool existed on the church premises. The evidence showed that the church advertised the preschool with flyers throughout the community, on its website, and with signs around the church. Additionally, the entrance to the church office, where defendant met with the pastor, was also the entrance to the nursery and had a sign explicitly stating the word “nursery.” The court rejected the defendant’s argument that the State was required to show that he should have known children were actually on the premises at the exact time when he was there. It reasoned: “[T]he actual presence of children on the premises is not an element of the crime, and the State needed only to demonstrate that defendant was ‘knowingly’ ‘[w]ithin 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors’ whether the minors were or were not actually present at the time.” (3) The court rejected the defendant’s facial overbreadth challenge to the statute reasoning that because his argument was not based on First Amendment rights, he lacked standing to assert the challenge. (4) The court rejected the defendant’s argument that G.S. 14-208.18(a) was unconstitutionally vague as applied to him, stating: “[G.S.] 14-208.18(a)(2) may be many things, but it is not vague.”