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State v. Anderson

Court of Appeals of North Carolina

August 1, 2017

STATE OF NORTH CAROLINA
v.
CHARLES MACK ANDERSON, JR.

          Heard in the Court of Appeals 7 March 2017

         Appeal 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.

          BRYANT, Judge.

         Where 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.

         In June 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 . . . .

         On 19 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.

         During 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.

         On 23 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)), [1] and 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)).[2] 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 abeyance.

         At 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 guilty.

         After 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).

         In 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).

         On 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.

         I. Appeal of Right-Conviction for Violation of N.C. Gen. Stat. § 14-208.18(a)(1)

         Defendant 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.

         "We 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)).

         Pursuant 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 locations:
(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 playgrounds.
(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, ยง 2, ...


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