Nonautomatic Sex Offender Registration

For the most part, if a defendant is convicted of a crime included in the list of reportable offenses, the defendant must register. But some crimes require registration only if the judge orders it. Today’s post summarizes what we know about the process for making that decision.

There are three types of offenses that are reportable only if the sentencing court orders registration.

  • Aiding and abetting a reportable offense. 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. (More about those purposes in a moment.)
  • Unlawful sale, surrender, or purchase of a minor.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.

In light of those purposes, our appellate courts have said that when a sentencing court assesses whether a defendant poses a “danger to the community”—which it must do for defendants convicted of sale of a child and peeping—its findings should generally be forward-looking. The sentencing 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. 367, 379 (2011).

In Pell, the court of appeals concluded that the trial court’s order requiring registration for a peeping defendant was too tied up in the specifics of the offenses of conviction and not predictive of the defendant’s likelihood of recidivism. If anything, most of the evidence indicated that the defendant was becoming less dangerous. The State’s expert witness said the defendant posed a “low to moderate risk of reoffending,” and letters from the defendant’s psychiatrist and counselor indicated that his depression, substance abuse, and paraphilia were in remission. Id. at 381. Victim statements about the defendant’s past offenses were not sufficient evidence of his future likelihood of reoffending, and therefore did not support the trial court’s order requiring registration.

The court of appeals reached a different result in State v. Fuller, ___ N.C. App. ___, 835 S.E.2d 53, writ of supersedeas allowed, ___ N.C. ___, 835 S.E.2d 459 (2019), another peeping case. In Fuller, the trial court concluded that the defendant posed a danger to the community based its findings that the defendant (1) made secret recordings over a long period of time (more than two months); (2) used sophisticated technology; (3) invaded the victim’s private space (her bathroom and bedroom) on multiple occasions to move the camera between them; (4) stored his recordings; and (5) could easily repeat the crime because the recording devices were cheap and easily obtainable. The court of appeals concluded over a dissent that the trial court’s determination that the defendant presented a danger was proper. A dissenting judge thought those findings were too focused on the defendant’s past offenses and not on his likelihood of committing new offenses in the future. The case is pending before the supreme court.

As to the procedure for making the registration determination, the statutes for all three types of offenses are written with the understanding that the sentencing judge will do it. However, a recent case allows some flexibility in that regard. In State v. Vorndran, No. COA19-889, 2020 WL 4458794, at *1 (N.C. Ct. App. Aug. 4, 2020), the court of appeals concluded that despite the peeping statute’s reference to the “sentencing court,” another judge in the district could do the registration determination hearing later if the sentencing judge expressly left the matter open for 12 months to give the defendant a chance to demonstrate that he wasn’t dangerous. When the defendant wound up charged with the same crime nine months later, the second judge completed the registration determination hearing, found that the defendant presented a danger, and ordered registration. At least on the facts of that case—where the defendant agreed to the later continuation of the hearing—the second judge had jurisdiction to finish the hearing and the order stood on appeal.

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