State v. Moir

• Decision Date: 21 December 2016
• Docket Number: No. 49PA14,49PA14
• Citation: 794 S.E.2d 685,369 N.C. 370
• Parties: STATE of North Carolina v. James Kevin MOIR
• Court: North Carolina Supreme Court

369 N.C. 370

794 S.E.2d 685

STATE of North Carolina

v.James Kevin MOIR

No. 49PA14

Supreme Court of North Carolina.

Filed December 21, 2016

Roy Cooper, Attorney General, by William P. Hart, Jr., Assistant Attorney General, for the State-appellant.

Crowe & Davis, P.A., by H. Kent Crowe ; and LeCroy Law Firm, PLLC, Morganton, by M. Alan LeCroy, for defendant-appellee.¹

ERVIN, Justice.

In this case, we consider whether the Court of Appeals erred by vacating and remanding the trial court's order denying a petition filed by defendant James Kevin Moir seeking termination of the requirement that he register as a sex offender on the grounds that the trial court had erroneously determined that defendant was not eligible to have his registration terminated in light of certain provisions of federal law. After careful consideration of the State's challenges to the Court of Appeals’ decision, we conclude that the Court of Appeals’ decision should be modified and affirmed and that this case should be remanded to the Court of Appeals for further remand to the trial court for additional proceedings not inconsistent with this opinion.

On 9 January 2001, the Catawba County grand jury returned bills of indictment charging defendant with having committed two counts of first-degree statutory sexual offense and two counts of taking indecent liberties with a child.² On 28 November 2001, defendant entered a plea of guilty to two counts of taking indecent liberties with a child. Based upon defendant's guilty plea, Judge James W. Morgan consolidated defendant's convictions for judgment and entered a judgment sentencing defendant to a term of sixteen to twenty months of imprisonment, with that sentence being suspended and with defendant being placed on supervised probation for five years on the condition that defendant serve an active sentence of one hundred ten days imprisonment, pay the costs, comply with the usual terms and conditions of probation and the special terms and conditions of probation applicable to sex offenders, and have no contact with the victim except to the extent that such contact is allowed by the victim's mother. In the course of entering judgment, Judge Morgan ordered defendant to "[i]mmediately register" as a sex offender as required by N.C.G.S. § 14-208.7, a mandate with which defendant complied on 15 March 2002. After defendant received an extension of the probationary period in October 2006 for the purpose of allowing defendant to complete the sex offender treatment program, Judge Timothy S. Kincaid entered an order on 25 June 2007 terminating defendant's probation. On 22 May 2012, defendant filed a petition pursuant to N.C.G.S. § 14-208.12A seeking to have the requirement that he register as a sex offender pursuant to Part 2 of Article 27A of Chapter 14 of the North Carolina General Statutes terminated on the grounds that he had "been subject to the North Carolina registration requirements ... for at least ten (10) years beginning with the" date of initial registration; that he had "not been convicted of any subsequent offense requiring registration" since the date of his conviction; that he had "not been arrested for any offense that would require registration" since the completion of his sentence; and that proper notice of his request for relief from his sex offender registration requirement had been provided to the appropriate entities.

Defendant's petition came on for hearing before the trial court at the 11 February 2013 criminal session of the Superior Court, Catawba County. On 18 February 2013, the trial court entered an order denying defendant's petition. In its order, the trial court found as fact that:

1. On November 28, 2001, the defendant entered pleas of guilty to two counts of taking indecent liberties with a minor child as part of a plea agreement.

2. Prior to the court's sentencing of the defendant, the State gave a statement of facts in support of the plea during which it was stated that the defendant had engaged in improper touching of the defendant's daughter, a child of the age of 4 years, and that he had masturbated in the presence of the child.

3. The State's statement of facts indicated that the improper touching had occurred in the vaginal area of the child.

4. The defendant was required to register as a sex offender under Part 2 of Article 27A of Chapter 14 of the General Statutes as a result of his guilty pleas.

5. The defendant has been subject to the North Carolina registration requirements of Part 2 of Article 27A for at least 10 years beginning with the date of the initial North Carolina registration.

6. Since the date of conviction, the defendant has not been convicted of any subsequent offenses requiring registration under Article 27A, Chapter 14.

7. Since the completion of his sentence for the indecent liberties offenses, the defendant has not been arrested for any offense that would require registration under Article 27A, Chapter 14.

8. The defendant served his petition on the Office of the District Attorney for Catawba County at least three weeks prior to the hearing held in this matter.

9. The risk of the defendant re-offending is low.

10. The defendant is not a current or potential threat to public safety.

11. Touching of the genital area of a minor with the intent to gratify sexual desire is considered "sexual contact" under the provisions of 18 U.S.C. § 2246(3), and sexual contact is classified as "abusive sexual contact" under 18 U.S.C. § 2244.

12. Abusive sexual contact is considered to be a Tier II offense under the provisions of 42 U.S.C. § 16911(3)(A)(iv).

13. The registration for Tier II offenses under the provisions of the Jacob Wetterling Act, 42 U.S.C. § 14071, and the provisions of the Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. § 16911, et seq. , is 25 years. This registration period cannot be reduced.

14. The defendant has not been registered as a sex offender for at least 25 years.

Based upon these findings of fact, the trial court concluded as a matter of law:

1. That the termination of defendant's obligation to register as a sex offender would not comply with the current provisions of the Adam Walsh Child Protection and Safety Act of 2006, which are applicable to the termination of a registration requirement and are required to be met as for the receipt of federal funding by the State of North Carolina.

2. [That t]he defendant is not entitled to termination of the registration requirement.

As a result, the trial court determined that defendant's "request to terminate the sex offender registration is denied" and that "defendant shall continue to maintain a current registration under Part 2 of Article 27A of Chapter 14." Defendant noted an appeal to the Court of Appeals from the trial court's order.

On 7 January 2014, the Court of Appeals filed an opinion vacating the trial court's order and remanding this case to the Superior Court, Catawba County, for further proceedings on the grounds that the trial court had erred by determining that defendant was a Tier II sex offender who was ineligible to obtain relief from the sex offender registration requirement. State v. Moir , 231 N.C.App. 628, 631–32, 753 S.E.2d 195, 196–97 (2014). According to the Court of Appeals, the trial court reached this erroneous conclusion based upon an incorrect understanding of the relevant provisions of federal law. Id . at 631, 753 S.E.2d at 197. In the Court of Appeals’ view, the extent to which an individual should be classified as a Tier I, Tier II, or Tier III offender hinges upon the nature of "the offense charged" rather than upon "the facts underlying the case," as the trial court appeared to believe. Id . at 631, 753 S.E.2d at 197. As a result, because the crime of taking indecent liberties with a child did not inherently involve the type of conduct required to make defendant a Tier II offender, the Court of Appeals concluded that defendant should be treated as a Tier I, rather than a Tier II, offender. Id . at 631–32, 753 S.E.2d at 197 (citing In re Hamilton , 220 N.C.App. 350, 358, 725 S.E.2d 393, 399 (2012), and In re McClain , 226 N.C.App. 465, 469, 741 S.E.2d 893, 896, disc. rev. denied , 366 N.C. 600, 743 S.E.2d 188 (2013) ). However, because "the ultimate decision of whether to terminate a sex offender's registration requirement still lies in the trial court's discretion," id. at 632, 753 S.E.2d at 197 (quoting In re Hamilton , 220 N.C.App. at 359, 725 S.E.2d at 399 (citing N.C.G.S. § 14-208.12A(a1) (2012) )), the Court of Appeals vacated the trial court's order and remanded this case to the trial court for the entry of a new order containing appropriate findings of fact and conclusions of law based upon a correct understanding of the applicable law and, in the event that the trial court determined that defendant was eligible to be relieved from his existing obligation to comply with the sex offender registration program, the making of a discretionary decision concerning the extent to which defendant's petition should be allowed or denied, id . at 632, 753 S.E.2d at 197. We granted the State's request for discretionary review on 19 August 2014.

Section 14-208.12A of our General Statutes, which governs requests for relief from the sex offender registration requirement, provides in pertinent part that:

(a) Ten years from the date of initial county registration, a person required to register under this Part may petition the superior court to terminate the 30-year registration requirement if the person has not been convicted of a subsequent offense requiring registration under this Article.

If the reportable conviction is for an offense that occurred in North Carolina, the petition shall be filed in the district where the person was convicted of the offense. ....

(a1) The court may grant the relief if:

(1) The petitioner demonstrates to the court that he or she has not been arrested for any crime that would require registration under this Article since completing the

...