State v. Fryou

• Decision Date: 17 November 2015
• Docket Number: No. COA14–1168.,COA14–1168.
• Citation: 244 N.C.App. 112,780 S.E.2d 152
• Parties: STATE of North Carolina v. Emile George FRYOU, Defendant.
• Court: North Carolina Court of Appeals

244 N.C.App. 112

780 S.E.2d 152

STATE of North Carolina

v.Emile George FRYOU, Defendant.

No. COA14–1168.

Court of Appeals of North Carolina.

Nov. 17, 2015.

Attorney General, Roy A. Cooper, III, by Assistant Attorney General, Mary Carla Babb, for the State.

Richard Croutharmel, Raleigh, for defendant-appellant.

STROUD, Judge.

Defendant, a registered sex offender, went to the Banner Elk Presbyterian Church to meet with the pastor, but because the church has a preschool on its premises, he was charged with violation of North Carolina General Statute § 14–208.18(a) for being a "[s]ex offender unlawfully on premises[.]" Defendant moved to dismiss the charges for several reasons, including as-applied and facial challenges to the constitutionality of North Carolina General Statute § 14–208.18. The trial court denied defendant's motion, he was convicted, and he appeals. Because defendant has not demonstrated error regarding his trial, lacks standing to bring a facial constitutional challenge, and the statute is not unconstitutionally vague as applied to him, we find no error.

I. Background

The State's evidence tended to show that on 12 March 2010, defendant registered as a sex offender with the Avery County Sheriff's Office. Upon registration defendant received an "offender acknowledgment packet" which contained information regarding the rules and responsibilities of the registered sex offender. Included in the packet was a document that stated that sex offenders "are prohibited from being within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on the premises that are not intended primarily for the use, care, or supervision of minors[.]"

On the morning of Tuesday, 13 November 2012, defendant went to the Banner Elk Presbyterian Church to meet with the pastor in the church's office to ask that the church participate in the "Angel Tree program to provide presents to children of inmates." The church's office hours were from 8:30am to 2:30pm, Monday through Thursday. The church operated a preschool from 9:00am to 1:00pm, Monday through Thursday, for children from ages two to five. The preschool children used rooms throughout the church building and also played outside. The church advertised the preschool with flyers throughout the community, on its website, and with signs around the church. The entrance to the church office was also the entrance to the nursery and the door through which defendant entered had a sign on it reading "nursery[.]"

Thereafter, the police contacted defendant, and he acknowledged that he was a registered sex offender, that he had visited the church office, and that "he knew he wasn't supposed to hang around ... preschools." In 2013, defendant was indicted for being a sex offender unlawfully on premises pursuant to North Carolina General Statute § 14–208.18(a)(2). On 9 June 2014, defendant filed a motion to dismiss arguing "that the statute is unconstitutional as applied to ... [him], and further that the statute itself is unconstitutional[,]" and his jury trial began.¹ Before his trial began, defendant made various oral arguments to the trial court addressing his contentions that the charges against him should be dismissed. The trial court denied defendant's oral motions but stated it would withhold its ruling on defendant's pretrial written motion to dismiss challenging the constitutionality of the statute. The jury found defendant guilty, and the trial court entered judgment in accordance with the verdict. Thereafter, the trial court entered a written order denying defendant's motion to dismiss on constitutional grounds, on both facial and as-applied challenges. Defendant appealed.

II. Motion to Dismiss

Defendant raises two separate arguments as to why his motions to dismiss should have been allowed.

This Court reviews the trial court's denial of a motion to dismiss de novo. Upon defendant's motion to dismiss, the question for the Court is 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. If so, the motion is properly denied. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.

State v. Larkin, ––– N.C.App. ––––, ––––, 764 S.E.2d 681, 689–90 (2014) (citations and quotation marks omitted), disc. review denied, – –– N.C. ––––, 768 S.E.2d 841 (2015).

A. Age of Victim in Prior Offense

Defendant first contends that "the trial court reversibly erred in ruling that whether Fryou was subject to prosecution under N.C. Gen.Stat. § 14–208(a)(2) based on having previously been convicted of an offense involving a victim less than 16 years of age was a question of fact for the jury." (Original in all caps.) The State indicted defendant pursuant to North Carolina General Statute § 14–208.18(a)(2) which provides:

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:

(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children's museums, 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.

N.C. Gen.Stat. § 14–208.18(a)(1)–(2) (2011). Subsection (c) of North Carolina General Statute § 14–208.18 as referenced in subsection (a) provides:

Subsection (a) of this section is applicable only to persons required to register under this Article who have committed any of the following offenses:

(1) Any offense in Article 7A of this Chapter.

(2) Any offense where the victim of the offense was under the age of 16 years at the time of the offense.

N.C. Gen.Stat. § 14–208.18(c)(1)–(2) (2011).

The indictment stated that defendant had "been previously convicted of an offense where the victim of the offense was under the age of 16 years at the time of the offense." Before the trial court defendant argued that his prior federal conviction did not show that the victim was under 16 years old; essentially defendant was requesting dismissal to the alleged failure in the indictment. Thereafter, the trial court and both attorneys discussed whether determining the age of the victim in the prior conviction was a question of fact for the jury or a question of law for the trial judge. Ultimately, defendant stipulated that he was "required to register as a sex offender, and that the victim was under the age of 16." But a defendant may generally not stipulate to a question of law. State v. Hanton, 175 N.C.App. 250, 253, 623 S.E.2d 600, 603 (2006) ("Stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate. This rule is more important in criminal cases, where the interests of the public are involved." (citation, quotation marks, and ellipses omitted)). Thus, defendant's argument on appeal is that the issue of the victim's age was a legal question and not a fact which could be established by stipulation or by the jury's determination.

The State contends that defendant did not preserve this issue for appeal both because he switched his stance on whether the question of the victim's age was a factual or legal question and because of his stipulation. We disagree. Our review of the transcripts indicates that both parties debated how to characterize the issue of the victim's age throughout the proceedings. Defendant does not on appeal take a stand completely different than he did at trial. And although defendant did ultimately stipulate to the victim's age, he did so specifically under objection, only because the trial court had rejected his prior arguments. Defendant's strategic decision to stipulate, under objection, based on an unfavorable decision by the trial court, does not mean defendant did not preserve the issue for appellate review; it simply means defendant played the hand he was dealt after his argument to the trial court was unsuccessful.

As defendant was charged, North Carolina General Statute § 14–208.18(a)(2) required the State to show, inter alia, that defendant was (1) a person required to register under North Carolina General Statute Article 27A, Sex Offender Registration Programs; (2) where the offense that required registration involved a victim that was under 16 years old at the time of the offense; and (3) knowingly at one of the proscribed locations. See N.C. Gen.Stat. § 14–208.18. Defendant contends that our construction of North Carolina General Statute § 14–208.18(a)(2) should be guided by State v. Phillips, 203 N.C.App. 326, 691 S.E.2d 104, disc. review denied, 364 N.C. 439, 702 S.E.2d 794 (2010). In Phillips, this Court analyzed statutes regarding satellite-based monitoring ("SBM") to "determine whether the trial court could properly conclude that defendant's conviction of the offense of felonious child abuse by the commission of any sexual act under N.C.G.S. § 14–318.4(a2) is an aggravated offense as defined in N.C.G.S. § 14–208.6(1a)." Id. at 329, 691 S.E.2d at 107 (quotation marks omitted). This Court determined:

N.C.G.S. § 14–318.4(a2) provides: Any parent or legal guardian of a child less than 16

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