State v. Daniels

Decision Date31 December 2012
Docket NumberNo. COA12–417.,COA12–417.
Citation741 S.E.2d 354
PartiesSTATE of North Carolina, v. William P. DANIELS, Defendant.
CourtNorth Carolina Court of Appeals

741 S.E.2d 354

STATE of North Carolina,
v.
William P. DANIELS, Defendant.

No. COA12–417.

Court of Appeals of North Carolina.

Dec. 31, 2012.






Unconstitutional as Applied
N.C. Gen.Stat. § 14–208.18(a)(3)

[741 S.E.2d 356]

Appeal by the State of North Carolina from order entered 5 December 2011 by Judge Wayland J. Sermons, Jr., in Dare County Superior Court. Heard in the Court of Appeals 25 September 2012.

Roy Cooper, Attorney General, by Laura E. Parker, Assistant Attorney General, for the State.

Glenn Gerding, for Defendant.


THIGPEN, Judge.

The State of North Carolina (“the State”) appeals from an order entered 5 December 2011 declaring N.C. Gen.Stat. § 14–208(a)(2) and (a)(3) unconstitutional on grounds that both are unconstitutionally overbroad and unconstitutionally vague. We affirm in part and vacate in part.

The evidence of record tends to show the following: William Daniels (“Defendant”) is a convicted and registered sex offender, having been convicted of second degree rape in violation of N.C. Gen.Stat. § 14–27.3 on 10 October 1996 and assault with intent to commit rape in violation of N.C. Gen.Stat. § 14–22 1 on 12 September 1973.

[741 S.E.2d 357]

On 6 May 2009, Defendant, along with Defendant's wife and son, went to Westcott Park in Manteo, North Carolina. Westcott Park is maintained and operated by the Dare County Parks and Recreation Department and has three small fields used for tee ball or Little League baseball games. Westcott Park also has a facility called the Lion's Club Center, which is used for community events, including, e.g., dance and gymnastics classes. The Lion's Club Center provides office space for Dare County Parks and Recreation staff. Westcott Park is open between six to seven days per week, serving youths from age three to age eighteen. Tee ball, Cal Ripken's, and Babe Ruth league games are played at the park. Baseball, soccer and other sports camps take place at Westcott Park during the summer season.

When Defendant and his family arrived at Westcott Park, Defendant's daughter—for whom Defendant had come to deliver onion bulbs for planting—had been watching her grandson playing in a tee ball game at Westcott Park. The game had just ended, and parents were leaving with their children. Defendant, Defendant's wife and son, and Defendant's daughter met on the east side of the tee ball field, between the road and the field, and talked for about an hour. During this time, children were playing a boy's baseball game and a girl's softball game on the other fields.

On 7 May 2009, Defendant, along with his daughter and son-in-law, went to Walker Park in Wanchese, North Carolina, to practice softball. Walker Park is also maintained by the Dare County Parks and Recreation Department, and contains an adult baseball field, a youth baseball field, soccer fields, and a playground and picnic area. Defendant and his daughter and son-in-law were members of a coed softball league. While they practiced, Defendant's wife sat in the car to watch. They practiced playing softball for about an hour and a half.

Alan Moran (“Deputy Moran”), a deputy for the Dare County Sheriff's Office, was at Walker Park umpiring a tee ball game. Deputy Moran recognized Defendant and knew that Defendant was a registered sex offender. Deputy Moran contacted Deputy Shawn Barrera, who drove to Walker Park to confirm that Defendant was playing softball there.

On 6 December 2010, Defendant was indicted 2 on two charges of violating N.C. Gen.Stat. § 14–208.18(a)(3) in file numbers 09 CRS 50792 and 09 CRS 20796, which proscribes the following conduct: “It shall be unlawful for any person required to register under this Article, if the offense requiring registration is described in subsection (c) of this section, to knowingly be at any of the following locations: ... At any place where minors gather for regularly scheduled educational, recreational, or social programs.” On 20 October 2010, Defendant filed a motion to declare N.C. Gen.Stat. § 14–208.18 unconstitutional, and on 13 April 2011, Defendant filed a superceding motion to declare N.C. Gen.Stat. § 14–208.18 unconstitutional. A hearing was held on 2 June 2011 on the question of the constitutionality of N.C. Gen.Stat. § 14–208.18. On 5 December 2011, the trial court entered a written order declaring N.C. Gen.Stat. §§ 14–208.18(a)(2) and (a)(3) unconstitutionally vague and overbroad and dismissing the pending charges against Defendant. On 7 December 2011, the State filed a written notice of appeal of the trial court's 5 December 2011 order.

_________________________

On appeal, the State argues the trial court erred in entering the 5 December 2011 order declaring N.C. Gen.Stat. § 14–208.18 unconstitutional for the following reasons: (1) the trial court lacked subject matter jurisdiction to rule that N.C. Gen.Stat. § 14–208.18(a)(2) was unconstitutional because Defendant was only indicted on charges of violating N.C. Gen.Stat. § 14–208.18(a)(3); (2) the trial court erred because Defendant lacked standing

[741 S.E.2d 358]

to raise a facial challenge to the constitutionality of N.C. Gen.Stat. §§ 14–208.18(a)(2) and (a)(3); (3) the trial court erred because N.C. Gen.Stat. §§ 14–208.18(a)(2) and (a)(3) are not, in fact, unconstitutionally overbroad or vague. We address each argument in turn.

I: Jurisdiction

In the State's first argument, it contends the trial court lacked subject matter jurisdiction to rule that N.C. Gen.Stat. § 14–208.18(a)(2) was unconstitutional because Defendant was only indicted on charges of violating N.C. Gen.Stat. § 14–208.18(a)(3). We agree.

A. Severability

The State's argument that the trial court did not acquire subject matter jurisdiction to enter an order on the constitutionality of N.C. Gen.Stat. § 14–208.18(a)(2) because Defendant was indicted pursuant only to a violation of N.C. Gen.Stat. § 14–208.18(a)(3) presumes that N.C. Gen.Stat. §§ 14–208.18(a)(2) and (a)(3) are severable. We first address the question of the severability of N.C. Gen.Stat. § 14–208.18(a)(1), (a)(2) and (a)(3).

Our Supreme Court has stated, in the context of the severability of a criminal statute, the following:

(I)t is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another and that if the invalid part is severable from the rest, the portion which is constitutional may stand while that which is unconstitutional is stricken out and rejected....

In line with the rule of severability, the courts will decline to consider the constitutionality of a particular statutory provision where (1) that provision is not necessarily involved in the litigation before the court, and (2) that provision may be severed from the provisions which are necessarily before the court.

The question whether the rule of severability shall be applied to save partially unconstitutional legislation from being struck down in toto (sic) involves, fundamentally, a determination of and conformity with the intent of the legislative body which enacted the legislation. However, in determining what was (or must be deemed to have been) the intention of the legislature, certain tests of severability have been developed. Thus, it is held that if after eliminating the invalid portions, the remaining provisions are operative and sufficient to accomplish their proper purpose, it does not necessarily follow that the whole act is void; and effect may be given to the remaining portions.

State v. Fredell, 283 N.C. 242, 244–45, 195 S.E.2d 300, 302 (1973) (quoting 16 Am.Jur.2d, Constitutional Law §§ 181–182).


In this case, the trial court noted, and we also take into consideration, the severability clause in the legislative history of N.C. Gen.Stat. § 14–208.18. House Bill 933, Session Law 2008–117 § 21.1, which is a portion of the act that created these crimes, states the following: “If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.” Id. This severability clause, in addition to the separate, distinct delineations of types of behaviors prohibited in N.C. Gen.Stat. § 14–208.18(a)(1), (a)(2) and (a)(3), suggest to this Court that, when enacting N.C. Gen.Stat. § 14–208.18(a), the General Assembly intended to provide for “three separate and independent offenses, none dependent on the other.” Fredell, 283 N.C. at 247, 195 S.E.2d at 303. We therefore hold that N.C. Gen.Stat. § 14–208.18(a)(1), (a)(2) and (a)(3) are divisible and separable.

B. Subject Matter Jurisdiction

We next address the State's argument on appeal that the trial court did not acquire subject matter jurisdiction to address the question of the constitutionality of N.C. Gen.Stat. § 14–208.18(a)(2).

“Jurisdiction [is] ... the power to hear and to determine a legal controversy; to inquire into the facts, apply the law, and to render and enforce a judgment[.]” High v. Pearce, 220 N.C. 266, 17 S.E.2d 108, 112 (1941). “Properly speaking, there can be no jurisdiction of the person where there is none

[741 S.E.2d 359]

of the subject matter, although the converse might indeed, and often does, occur.” Id. “Where there is no jurisdiction of the subject matter the whole proceeding is void ab initio and may be treated as a nullity anywhere, at any time, and for any purpose.” Id.

Jurisdiction of the subject matter of a criminal offense is derived from the law. State v. Tickle, 238 N.C. 206, 208, 77 S.E.2d 632, 634 (1953), cert. denied,346 U.S. 938, 74 S.Ct. 378, 98 L.Ed. 426 (1954). N.C. Const. Art. IV, § 12(3) provides that “[e]xcept as otherwise provided by the General Assembly, the Superior Court shall have original general jurisdiction throughout the State.” Id. “The superior court has exclusive, original jurisdiction over all criminal actions not assigned to the district court division[,]” meaning, generally, that...

To continue reading

Request your trial
18 cases
  • NC RSOL v. Boone
    • United States
    • U.S. District Court — Middle District of North Carolina
    • August 26, 2019
    ...charged with violating § 14–208.18 for attending a church where he had the pastor's permission to attend."); State v. Daniels, 224 N.C. App. 608, 610, 741 S.E.2d 354, 357 (2012) ("Defendant was indicted on two charges of violating N.C. Gen. Stat. § 14–208.18(a)(3)" for being present at a pa......
  • Doe v. Cooper, 1:13CV711
    • United States
    • U.S. District Court — Middle District of North Carolina
    • August 22, 2014
    ...has held that the threePage 23provisions within § 14-208.18(a) describe three separate and distinct criminal offenses. State v. Daniels, 741 S.E.2d 354, 361 (N.C. Ct. App. 2012). As such, if this Court were to find some, but not all, of the three subsections to be unconstitutional, the othe......
  • Doe v. Cooper
    • United States
    • U.S. District Court — Middle District of North Carolina
    • August 22, 2014
    ...has held that the three provisions within § 14–208.18(a) describe three separate and distinct criminal offenses. State v. Daniels, 741 S.E.2d 354, 361 (N.C.Ct.App.2012). As such, if this Court were to find some, but not all, of the three subsections to be unconstitutional, the other subsect......
  • Doe v. Cooper
    • United States
    • U.S. District Court — Middle District of North Carolina
    • August 22, 2014
    ...has held that the three provisions within § 14–208.18(a) describe three separate and distinct criminal offenses. State v. Daniels, 741 S.E.2d 354, 361 (N.C.Ct.App.2012). As such, if this Court were to find some, but not all, of the three subsections to be unconstitutional, the other subsect......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT