State v. Fuller, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 5, 2019)

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.