in the Court of Appeals 18 September 2019.
by Defendant from order entered 23 October 2018 by the
Honorable A. Graham Shirley in Wake County No. 18CRS215701
Attorney General Joshua H. Stein, by Assistant Attorney
General Narcisa Woods, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Andrew DeSimone, for the Defendant.
Ryan Kirk Fuller pleaded guilty to one count of felony secret
peeping. During sentencing, the trial court determined that
Defendant was a "danger to the community" and,
accordingly, ordered that he register as a sex offender for
thirty (30) years pursuant to N.C. Gen. Stat. §
14-202(1). Defendant appeals from this portion of the order.
Factual and Procedural Background
victim, Mrs. Smith, and her husband lived with their teenage
son in their home in Apex. Defendant, a long-time friend of
the Smiths, lived in the home as well.
August 2018, Mr. Smith walked into his living room and
observed a video of his wife undressing in their bedroom
playing on the television. Mr. Smith was confused as to how
the image was appearing on his television. Mr. Smith then saw
Defendant in the living room watching the video and
immediately contacted the police.
soon admitted to the following: He was responsible for the
video and other recordings of Mrs. Smith made while she was
either in her bedroom or bathroom. He had developed romantic
feelings for Mrs. Smith, leading him to purchase and install
a phone charger with a secret camera to record her when she
was in her bathroom and bedroom. The camera activated via a
motion sensor and had the capability, not only to record and
store, but also to cast a live feed. He had been recording
Mrs. Smith for more than two months when Mr. Smith caught
him. And he had sorted and downloaded approximately fifty
(50) images of Mrs. Smith from his recordings onto his
was indicted on three counts of secret peeping, pursuant to
N.C. Gen. Stat. § 14-202. Defendant pleaded guilty to
one count in exchange for dismissal of the two other counts.
The trial court accepted his plea and sentenced Defendant to
a suspended prison term.
trial court then heard arguments on whether to require
Defendant to register as a sex offender, as registration is
not mandatory for those convicted under Section 14-202, but
rather is appropriate only if the trial court makes certain
findings. After hearing arguments from counsel, the trial
court ordered Defendant to register as a sex offender.
Defendant timely appealed.
argues that the trial court erred in requiring him to
register as a sex offender. We disagree.
person is convicted for secretly peeping pursuant to Section
14-202(d) of our General Statutes, registration as a sex
offender is not automatically required. N.C. Gen. Stat.
§ 14-202 (2018). Rather, the General Assembly directs
that "the sentencing court shall consider [(1)] whether
the person is a danger to the community and [(2)] whether
requiring the person to register as a sex offender pursuant
to Article 27A of this Chapter would further the purposes of
that Article as stated in G.S. 14-208.5." N.C. Gen.
Stat. § 14-202(1).
appeal, Defendant argues that the trial court should not have
ordered registration as there was no evidence that he was
"a danger to the community."
General Assembly has not defined "danger to the
community," but it could be argued that a normal reading
of the phrase would include someone who is willing and
capable to violate a position of trust to install
sophisticated, hard-to-detect devices to record his victim in
intimate settings, as Defendant did in this case.
is limited, controlling jurisprudence on who constitutes a
"danger to the community" under Section 14-202(1).
In support of his argument, Defendant relies primarily on two
cases; namely, the one published opinion from our Court where
this issue was squarely addressed, State v. Pell,
211 N.C.App. 376');">211 N.C.App. 376, 712 S.E.2d 189 (2011), and an unpublished
case decided by our Court seven years later, State v.
Guerrette, 818 S.E.2d 648, 2018 N.C.App. LEXIS 967 (
N.C. Ct. App. Oct. 2, 2018). Neither party has cited to any
other North Carolina opinion, nor has our research uncovered
any, where the issue before our Court or our Supreme Court
was whether the trial court erred in ordering registration
for a defendant convicted pursuant to Section 14-202. In any
event, as Pell is a published decision, we are bound
by the holdings therein. See In re Civil Penalty,
324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Pell, our Court defined one who is a "danger to
the community" as a defendant who "pose[s] a risk
of engaging in sex offenses following release from
incarceration or commitment." Pell, 211
N.C.App. at 379, 712 S.E.2d at 191.
then suggested that whether one is a "danger to the
community" is a mixed question of fact and law,
Id. at 380, 712 S.E.2d at 192, and that our review
on appeal is as follows:
Whether a trial court finds that a defendant poses a risk of
engaging in sex offenses following release from incarceration
[and is, therefore, a "danger to the community"]
will be based upon a review of the surrounding factual
circumstances. Accordingly, [our] Court will review the trial
court's findings to ensure that they are supported by
competent evidence, and we review the conclusions of law to
ensure that they reflect a correct application of law to the
Id. at 380-81, 712 S.E.2d at 192 (emphasis
the trial court determined that Defendant posed a risk of
committing sexual offenses - and therefore was a danger to
the community - based on its findings that (1) Defendant made
the recordings "over a long period of time[;]" (2)
Defendant used a sophisticated method of recording Mrs. Smith
by use of a hidden camera; (3) Defendant invaded Mrs.
Smith's private spaces on multiple occasions to move his
camera back and forth between Mrs. Smith's bedroom and
her bathroom when she was not present; (4) Defendant stored
his recordings to allow him to view them at any time; and (5)
Defendant would have no difficulty in repeating his crime as
the recording devices were easily obtainable and inexpensive.
conclude that these findings are supported by competent
evidence. After he was caught in the act, Defendant
essentially admitted to these findings and has not challenged
any of them on appeal.
further conclude that these findings and the uncontradicted
evidence before the trial court support the determination
that Defendant posed a risk of sexual offenses in the future
to warrant imposition of the registration
requirement. Indeed, the evidence shows that Defendant
is capable of taking advantage of long-time, close friends
who trusted him to live in their home with them and their
teenage son. They show that he is willing and able to devise
and execute a scheme using sophisticated means to commit his
crime in a way that would likely be undetected by his victim.
They show that he is willing and able to put forth effort
over a period of time to further his crime, in that he
repeatedly invaded the personal space of his victim to
re-position his camera. They show that he is willing and able
to commit his crime in a manner which could cause greater
harm to his victim that that suffered by typical victims of
this crime: where the harm for most victims of peeping is the
knowledge that they have been spied upon, here Defendant made
permanent recordings which could be viewed numerous times by
anyone in the future. They show that he could commit the
crime again in the future with ease. And they show a lack of
real remorse in that he only confessed when he was caught
red-handed by his victim's husband.
argues that Pell compels a reversal since the trial
court largely relied on the facts of his crime to determine
whether he posed a risk of reoffending. We do not read
Pell so narrowly. Specifically, in Pell,
the State's evidence showed that the defendant was only a
low to moderate risk and was moving in the right direction
and that his psychiatric issues, which were a cause of his
criminal behavior, were in remission. Id. at 381,
712 S.E.2d at 192-93. The State in that case, though, had
relied on victim impact statements, which "all tended to
address the manner in which [the d]efendant committed his
past offenses and the effect his actions had on each of [the
victims'] lives." Id. at 382, 712 S.E.2d at
193. The Pell Court rejected the State's
argument that ...