State v. Lingerfelt, COA23-1158, ___ N.C. App. ___ (Dec. 17, 2024)

In this McDowell County case, defendant appealed the order denying his petition for termination of sex offender registration, arguing his underlying offense, sexual activity by a substitute parent, was a Tier I offense not a Tier II offense. The Court of Appeals majority disagreed, affirming the order.

In February of 2003, defendant was convicted of two counts of sexual activity by a substitute parent under G.S. 14-27.7. In March of 2023, defendant filed a petition to terminate his sex offender registration, but the trial court denied this petition, finding his offense was Tier II under the federal Jacob Wetterling Act and denying his petition. On appeal, defendant disputed the classification of his offense.

The Court of Appeals looked to State v. Moir, 369 N.C. 370 (2016), for guidance on determining which tier an offense falls under in the federal framework. Here, the court determined that G.S. 14-27.7(a) represents a “divisible statute” because it contains multiple offenses, meaning the court would need to apply the “modified categorical approach” from Moir. Slip Op. at 7. The court proceeded to “inquire as to whether the federal statute, abusive sexual contact, is a categorical match with the state offense of sexual activity by a substitute parent.” Id. at 10. Here the court noted that there was a difference between the two, as the “range of conduct prohibited by [G.S.] 14-27.7(a) is wider than the range prohibited by 18 U.S.C. § 2244(a)(3), because it does not require a mental state.” Id. at 13.

At this point, the court concluded “despite the mens rea mismatch between the statutes at issue, there is no realistic probability that North Carolina could or would enforce its statute in a way that would sweep in unintentional sexual activity by a substitute parent” and thus there was a categorical match. Id. at 14. The court acknowledged this was the opposite outcome from Cabeda v. Attorney General of United States, 971 F.3d 165 (3d Cir. 2020), where the Third Circuit concluded that the lack of a mens rea requirement meant a Pennsylvania statute was not categorical match for the federal crime.

Judge Murphy dissented and would have held that defendant’s conviction was not a match for the federal statute, making him a Tier I offender.