Reportable Kidnapping

In the course of robbing a convenience store, a man restrains a 17-year-old clerk. Suppose the parties work out a plea to second-degree kidnapping. Everything is fine until the judge advises the defendant of the maximum permissible punishment for his Class E crime: 136 months. “136 months?” his lawyer said, puzzled. “I thought it would be 88.” “It would be,” the court replied, “if this crime didn’t require registration as a sex offender.”

The judge is correct. Kidnapping—first- or second-degree—is one of three North Carolina crimes that can fall into the category of “offense against a minor.” G.S. 14-208.6(1i). The other two are abduction of children (G.S. 14-41) and felonious restraint (G.S. 14-43.3). All three require sex offender registration if (1) committed against a minor (2) by a defendant who is not the minor’s parent. When those two additional facts apply, the crime becomes a reportable offense for which defendant must register as a sex offender. Registration in that case is mandatory; is not optional within the discretion of the trial court judge, as it is for crimes like secretly peeping or sale of a child. There is no exception for a defendant under 18 who commits a covered offense against another minor.

People are sometimes surprised to learn about these reportable sex crimes that have nothing to do with sex. But the sex offender registry is actually called the “Sex Offender and Public Protection Registration Program,” and the Generally Assembly specifically found that certain types of offenses other than sex crimes, such as kidnapping, “pose significant and unacceptable threats to the public safety and welfare of the children in this State.” G.S. 14-208.5.

Several aspects of the additional factual findings that make kidnapping and related crimes reportable are worth a closer look.

Committed against a minor. The term “minor” is undefined in this context, but it almost certainly refers to a victim under the age of 18. When related statutes define the word, 18 (not 16) is the age they choose. See, e.g., G.S. 14-43.10(a)(4) (defining a minor as a person less than 18 for purposes of the human trafficking law); 14-203 (same for prostitution law); 14-190.13 (same for various sexual exploitation crimes).

Not the minor’s parent.  “Parent” in this context means biological or adoptive parent. It does not include legal custodians, S.L. 1999-363 (removing the words “legal custodian” from the definition of an offense against a minor), or a stepparent, State v. Stanley, 205 N.C. App. 707 (2010).

Procedure for finding additional facts. In State v. Arrington, __ N.C. App. __, 741 S.E.2d 453 (2013), the court of appeals held that the trial court is tasked with finding the additional facts that elevate a kidnapping, abduction, or restraint conviction to an “offense against a minor.” The appellate court went on to say that the “trial court is not restricted to simply considering the elements of the offense for which the defendant was convicted” in making that determination—unlike aggravated offense determinations for satellite-based monitoring purposes, which are restricted to the elements of the conviction offense. Sometimes extra evidence will not be necessary. For example, abduction of children will always be committed against a minor because that is an element of the offense. In other cases, though, the State would apparently need to present other evidence of the victim’s age, along with proof that the defendant is not the victim’s parent.

If the additional facts are found, the finding is memorialized on the current forms by checking the “reportable conviction” box on the judgment and commitment, and then by checking finding 1.a on form AOC-CR-615.

A Blakely issue? These additional findings raise a potential constitutional concern. It is probably fine to require someone to register as a sex offender based on findings made by a judge; sex offender registration is not punishment. State v. Sakobie, 165 N.C. App. 447 (2004). But reportable convictions are also subject to additional sentencing consequences in North Carolina. All reportable felonies receive a 5-year term of post-release supervision, G.S. 15A-1368.2(c), and Class B1–E reportable felonies are subject to a 48-month maximum sentence enhancement (their maximum sentence is 120 percent of the minimum plus 60 months, instead of the usual plus 12), 15A-1340.17(f). To the extent that the additional factual findings trigger additional punishment, it seems to me that they must be proved to a jury beyond a reasonable doubt if not admitted to by the defendant. Blakely v. Washington, 542 U.S. 296 (2004). There is no statutory procedure for that, but it could probably be done by way of a special verdict. Cf. State v. Blackwell, 361 N.C. 41 (2006) (approving of a special verdict as a procedural device by which the jury may answer specific questions—the existence of aggravating factors in that case—distinct from the general verdict).