Findings in Support of Sex Offender Registration after State v. Fuller

Most crimes on the list of reportable offenses automatically and mandatorily require registration upon conviction. As discussed in an earlier post, however, some crimes require registration only if the sentencing court orders it. After I wrote that post, the Supreme Court of North Carolina issued an opinion on what findings can properly support a trial court’s conclusion that a conviction will require sex offender registration. Today’s post discusses that case, State v. Fuller, 2021-NCSC-20, ___ N.C. ___, ___ S.E.2d ___ (Mar. 12, 2021).

As discussed in that previous post, there are three types of offenses that are reportable only if the sentencing court orders registration.

  • Aiding and abetting a reportable offense. G.S. 14-208.6(4)a. A conviction for an otherwise reportable offense based on an aiding and abetting theory requires registration only if the sentencing court finds that registration furthers the purposes of the registry.
  • Unlawful sale, surrender, or purchase of a minor. G.S. 14-43.14. A conviction for this crime requires registration “only if the court sentencing the individual issues an order pursuant to G.S. 14-43.14(e) requiring the individual to register.” G.S. 14-208.6(4)e. G.S. 14-43.14(e) says the sentencing court shall consider whether the person is a danger to the community and whether registration would further the purposes of the registry. G.S. 14-43.14(e). If the court rules that the person is a danger to the community and that the person shall register, then it issues an order requiring registration.
  • Secretly peeping (felony offenses and certain second or subsequent misdemeanor convictions). G.S. 14-202. For covered peeping crimes, the sentencing court shall consider whether the defendant is a danger to the community and whether registration would further the purposes of the registry. If the court rules that the person is a danger to the community and that the person shall register, then it issues an order requiring registration.

All three categories require the court to consider the purposes of the registry when deciding whether to order registration. Those purposes are listed in G.S. 14-208.5:

  • To assist law enforcement agencies’ efforts to protect communities by requiring persons who are convicted of sex offenses or of certain other offenses committed against minors to register with law enforcement agencies.
  • To require the exchange of relevant information about those offenders among law enforcement agencies.
  • And to authorize the access to necessary and relevant information about those offenders.

Previously, our appellate courts had said that when a sentencing court assesses whether a defendant poses a “danger to the community,” its findings should generally be forward-looking. The court should consider whether the defendant “pose[s] a risk of engaging in sex offenses following release from incarceration or commitment,” not reexamine the details of past offenses. State v. Pell, 211 N.C. App. 376, 379 (2011) (reversing trial court’s order requiring registration because they were overly focused on past events and not predictive of the defendant’s likelihood of recidivism). In State v. Fuller, the Supreme Court took a broader approach.

In Fuller, the defendant pled guilty to secret peeping. While living with a couple he had known for a decade, he was using a camera to take photographs and videos of the woman, Mrs. Smith. As part of the plea, the defendant agreed to a mental health evaluation specific to sex offenders, with registration to be determined by the sentencing court. The trial court ordered registration based on the arguments of the parties, without considering a Static-99 risk assessment.

The defendant argued on appeal that the trial judge’s order was based on insufficient evidence because its conclusion that he was a “danger to the community” was not based on a risk assessment. A divided panel of the Court of Appeals affirmed the trial judge, 268 N.C. App. 240 (2019), with a dissenting judge arguing that the evidence was insufficient. The defendant appealed to the Supreme Court based on the dissent.

The Supreme Court affirmed the decision of the Court of Appeals. The high court rejected the argument that a Static-99 and consideration of a defendant’s likelihood of recidivism are dispositive of the issue of whether a defendant is a danger to the community. The court also moved away from the Court of Appeals’ conclusion in Pell that the assessment of dangerousness to the community should be exclusively forward looking. The Supreme Court concluded to the contrary that the determination could properly be made based on a showing that “the defendant’s conduct within the relevant past” reflected a reasonable probability of similar conduct in the near future. Slip op. at ¶ 19. The court thus held that the following trial court findings sufficed to establish the defendant’s dangerousness.

  • The defendant’s willingness to take advantage of a close personal relationship.
  • The defendant’s use of a sophisticated scheme intended to avoid detection.
  • The extended period of time the defendant deployed the hidden camera.
  • The defendant’s ability and decision to repeatedly invade the victim’s privacy.
  • The defendant’s ability and willingness to cause significant and lasting emotional harm to his victim.
  • The ease with which the defendant could commit similar crimes again in the future.

After Fuller, it appears that a trial court has the discretion to consider and weigh all the evidence, including evidence of past acts that encompass the crime of conviction, in deciding whether the defendant presents a “danger to the community” such that sex offender registration is required. That determination need not be based on the results of the Static-99 risk assessment or “upon the consideration of a singular fact or predictive analysis.” That said, it makes sense that some judges will still want to consider the results of a risk assessment when making a determination. I think the court can order such an assessment as part of a presentence investigation as provided in G.S. 15A-1332(b), discussed here.