State v. Fuller, 110519 NCCA, COA19-243

Docket Nº:COA19-243
Opinion Judge:DILLON, JUDGE.
Party Name:STATE OF NORTH CAROLINA v. RYAN KIRK FULLER, Defendant.
Attorney: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.
Judge Panel:Judge TYSON concurs, writing separately. Judge BROOK dissents. TYSON, Judge, concurring. BROOK, Judge, dissenting.
Case Date:November 05, 2019
Court:Court of Appeals of North Carolina
 
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STATE OF NORTH CAROLINA

v.

RYAN KIRK FULLER, Defendant.

No. COA19-243

Court of Appeals of North Carolina

November 5, 2019

Heard in the Court of Appeals 18 September 2019.

Appeal by Defendant from order entered 23 October 2018 by the Honorable A. Graham Shirley in Wake County No. 18CRS215701 Superior Court.

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.

DILLON, JUDGE.

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. We affirm.

I. Factual and Procedural Background

The victim, Mrs. Smith1, 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.

On 17 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.

Defendant 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 personal devices.

Defendant 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.

The 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.

II. Analysis

Defendant argues that the trial court erred in requiring him to register as a sex offender. We disagree.

When a 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).

In his 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."[2]

Our 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.

There 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, 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).

In 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.

Pell 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 facts.

Id. at 380-81, 712 S.E.2d at 192 (emphasis added).3

Here, 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.

We 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.

We 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.4 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.

Defendant 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...

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