State v. Fuller, 376 N.C. 862 (Mar. 12, 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.]