in the Court of Appeals 7 March 2017
by defendant from judgments entered 3 February 2016 by Judge
Marvin P. Pope Jr. in Graham County Superior Court Nos. 14
CRS 50703, 50721; 15 CRS 250-52, 50072
Attorney General Joshua H. Stein, by Assistant Attorney
General Lauren Tally Earnhardt, for the State.
Appellate Defender G. Glenn Gerding, by Assistant Appellate
Defender Daniel Shatz, for defendant-appellant.
the evidence was insufficient to prove that defendant's
presence as a sex offender in the parking lot shared by a
daycare and other businesses was a location governed by N.C.
G.S. § 14-208.18(a)(1), the trial court erred by denying
defendant's motion to dismiss, and we reverse the
judgment of the trial court as to the conviction in file no.
14 CRS 50721. Where the Fourth Circuit has ruled that
subsection (a)(2) of N.C. G.S. § 14-208.18 is
unconstitutionally overbroad in violation of the First
Amendment, and the State asserts no argument to the contrary,
we adopt the analysis of the Fourth Circuit's ruling and
vacate defendant's conviction in file no. 14 CRS 50703.
Where one conviction is reversed and another vacated, the
essential and fundamental terms of defendant's plea
agreement have become "unfulfillable, " and we set
aside the entire plea agreement and remand.
2006, defendant Charles Mack Anderson Jr. pled guilty to the
felony offense of lewd and lascivious molestation and was
placed on sex offender probation. When defendant relocated to
Graham County, he registered with the Graham County
Sheriff's Department on 25 October 2014 pursuant to the
North Carolina Sex Offender and Public Protection
Registration Programs codified within Chapter 14 of our
General Statutes. When registering, defendant signed an
acknowledgment that persons registered under the act were
prohibited from the
premises of any place intended primarily for the use, care,
or supervision of minors, including . . . child care centers,
nurseries and playgrounds; . . . [and] [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 . . . .
December 2014, Danny Millsaps, Sheriff of Graham County, was
on routine patrol on Patton Street, which ran behind the
Eagle Knob Learning Center, a daycare supervising
approximately fifty-five children, from newborns to
five-year-olds. At "the first residence behind the
learning center, " Sheriff Millsaps observed defendant
outside chopping wood. By searching a police database,
Sheriff Millsaps determined that defendant was a registered
sex offender in visual and "close" proximity to a
child care center. Sheriff Millsaps then informed defendant
that he could not be at the residence due to its proximity to
the child care center (hereinafter "daycare"). That
afternoon, a law enforcement officer standing in the yard of
the Patton Street residence observed two or three children
playing on the daycare playground.
the evening of 28 December 2014, a Sunday, Sergeant Cody
George was on routine patrol on southbound Highway 129,
passing in front of the Eagle Knob daycare center, when he
observed defendant's green SUV in the parking lot.
Sergeant George testified that he was familiar with
defendant, having seen him some eight to ten times before,
and was familiar with defendant's SUV. Sergeant George
recognized defendant as the driver and testified that
defendant was approximately seventy-five feet from the
daycare. On cross-examination at trial, Sergeant George
acknowledged that the daycare was not open when he observed
defendant in the parking lot, and that the other businesses
adjacent to the daycare in the shopping mall, a tax
preparation service and a hair salon, were also closed at the
time. Sergeant George testified he believed a stand-alone
restaurant, which also shared the parking lot, was closed on
Sundays as well. When Sergeant George determined that
defendant was prohibited from being on the premises of the
daycare at all times and not just during business hours, he
obtained a warrant for defendant's arrest.
March 2015, a grand jury convened in Graham County Superior
Court indicted defendant for being a sex offender unlawfully
within 300 feet of a location intended primarily for the use,
care, or supervision of minors (file no. 14 CRS 50703 (for
being a sex offender within 300 feet of a daycare)),
for being a sex offender unlawfully on premises intended
primarily for the use, care, or supervision of minors (14 CRS
50721 (for being a sex offender on the premises of a
daycare)). On 1 September 2015, defendant was
indicted for failure to report a new address as required by
the Sex Offender Registry Programs statutes, N.C. Gen. Stat.
§§ 14-208.5 et seq. (15 CRS 50072), and
three counts of attaining habitual felon status (15 CRS
250-52). The matter came on to be heard before a jury in
Graham County Superior Court during the 11 January 2016
criminal session, the Honorable Marvin P. Pope, Jr., Judge
presiding. The State proceeded to trial by jury only on the
charge under file no. 14 CRS 50721, being a sex offender on
the premises of a daycare. The remaining charges were held in
trial, defendant moved to dismiss the charge, arguing that
the parking lot in which defendant was observed was shared by
the daycare, a tax preparation service, and a hair salon, and
that the State had failed to present evidence that the
parking lot was a part of the daycare or that defendant was
knowingly on the property of the daycare. Specifically,
defendant argued that the State "failed to produce any
evidence at all of . . . defendant actually being on the
premises of [the] day care." (Emphasis added).
Defendant also argued that the State did not "produce
any witness or define in any way that that parking lot was
part of that premises of that day care, when that's a
shared parking lot with the tax place, the haircutting place,
the diner, the day care . . . ." The trial court denied
defendant's motion. The jury returned a verdict of
the jury verdict, the State was allowed, without objection,
to amend the indictment against defendant charging failure to
report a new address as a sex offender (15 CRS 50072).
Defendant then pled guilty to the remaining charges: being a
sex offender within 300 feet of a daycare (14 CRS 50703);
failure to report a new address as a sex offender (15 CRS
50072); and three counts of attaining habitual felon status
(15 CRS 250-52).
accordance with the jury verdict and guilty pleas, the trial
court entered two judgments-one on the charge of being a sex
offender on the premises of a daycare, combined with one
count of attaining habitual felon status; and a second
judgment on the charges of being a sex offender within 300
feet of a daycare, failure to report a new address, and two
counts of attaining habitual felon status. For each judgment,
defendant was sentenced to concurrent terms of 84 to 113
months. Defendant appealed from the judgment entered
following the jury verdict on the charge of being a sex
offender on the premises of a daycare (14 CRS 50721).
appeal, defendant challenges his conviction for being a sex
offender on the premises of a daycare and petitions this
Court for a writ of certiorari to review the remaining
convictions to which defendant pled guilty.
Appeal of Right-Conviction for Violation of N.C. Gen. Stat.
first argues the trial court erred in failing to grant his
motion to dismiss the charge of being on the premises of a
daycare (14 CRS 50721), in violation of N.C. G.S. §
14-208.18(a)(1) (2015). More specifically, defendant contends
the State failed to present sufficient evidence that the
parking lot shared by adjacent businesses was part of the
premises of the daycare and thus, failed to establish the
crime charged in the indictment. We agree.
review denial of a motion to dismiss criminal charges de
novo, to determine whether there is substantial evidence
(1) of each essential element of the offense charged, or of a
lesser offense included therein, and (2) of defendant's
being the perpetrator of such offense." State v.
Spruill, 237 N.C.App. 383, 385, 765 S.E.2d 84, 86 (2014)
(quoting State v. Mobley, 206 N.C.App. 285, 291, 696
S.E.2d 862, 866 (2010)). "Evidence is substantial if it
is relevant and adequate to convince a reasonable mind to
accept a conclusion." State v. Trogdon, 216
N.C.App. 15, 25, 715 S.E.2d 635, 642 (2011) (citation
omitted). "We must consider evidence in a light most
favorable to the State and give the State the benefit of
every reasonable inference from the evidence."
Mobley, 206 N.C.App. at 291, 696 S.E.2d at 866
(citing State v. Parker, 354 N.C. 268, 278,
553 S.E.2d 885, 894 (2001)).
to North Carolina General Statutes, section 14-208.18(a),
[i]t shall be unlawful for any person required to register
under [the Sex Offender and Public Registration Programs], if
the offense requiring registration is described in subsection
(c) of this section, to knowingly be at any of the following
(1)On the premises of any place intended primarily for the
use, care, or supervision of minors, including, but not
limited to . . . child care centers, nurseries, and
(2)Within 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, including, but not limited
to, places described in subdivision (1) of this subsection
that are located in malls, shopping centers, or other
property open to the general public.
(3)At any place where minors gather for regularly scheduled
educational, recreational, or social programs.
N.C. Gen. Stat. § 14-208.18(a)(1)-(3) (2011),
amended by N.C. Sess. Laws 2016-102, § 2, ...