State v. Fryou , 244 N.C. App. 112 ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1168
Filed: 17 November 2015
Avery County, No. 12CRS050717
STATE OF NORTH CAROLINA
v.
EMILE GEORGE FRYOU, Defendant.
Appeal by defendant from judgment entered on or about 11 June 2014 by Judge
Alan Z. Thornburg in Superior Court, Avery County. Heard in the Court of Appeals
8 April 2015.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Mary Carla
Babb, for the State.
Richard Croutharmel, for defendant-appellant.
STROUD, Judge.
Defendant, a registered sex offender, went to the Banner Elk Presbyterian
Church to meet with the pastor, but because the church has a preschool on its
premises, he was charged with violation of North Carolina General Statute § 14-
208.18(a) for being a “[s]ex offender unlawfully on premises[.]” Defendant moved to
dismiss the charges for several reasons, including as-applied and facial challenges to
the constitutionality of North Carolina General Statute § 14-208.18. The trial court
denied defendant’s motion, he was convicted, and he appeals. Because defendant has
STATE V. FRYOU
Opinion of the Court
not demonstrated error regarding his trial, lacks standing to bring a facial
constitutional challenge, and the statute is not unconstitutionally vague as applied
to him, we find no error.
I. Background
The State’s evidence tended to show that on 12 March 2010, defendant
registered as a sex offender with the Avery County Sheriff’s Office. Upon registration
defendant received an “offender acknowledgment packet” which contained
information regarding the rules and responsibilities of the registered sex offender.
Included in the packet was a document that stated that sex offenders “are prohibited
from being within 300 feet of any location intended primarily for the use, care, or
supervision of minors when the place is located on the premises that are not intended
primarily for the use, care, or supervision of minors[.]”
On the morning of Tuesday, 13 November 2012, defendant went to the Banner
Elk Presbyterian Church to meet with the pastor in the church’s office to ask that the
church participate in the “Angel Tree program to provide presents to children of
inmates.” The church’s office hours were from 8:30am to 2:30pm, Monday through
Thursday. The church operated a preschool from 9:00am to 1:00pm, Monday through
Thursday, for children from ages two to five. The preschool children used rooms
throughout the church building and also played outside. The church advertised the
preschool with flyers throughout the community, on its website, and with signs
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around the church. The entrance to the church office was also the entrance to the
nursery and the door through which defendant entered had a sign on it reading
“nursery[.]”
Thereafter, the police contacted defendant, and he acknowledged that he was
a registered sex offender, that he had visited the church office, and that “he knew he
wasn’t supposed to hang around . . . preschools.” In 2013, defendant was indicted for
being a sex offender unlawfully on premises pursuant to North Carolina General
Statute § 14-208.18(a)(2). On 9 June 2014, defendant filed a motion to dismiss
arguing “that the statute is unconstitutional as applied to . . . [him], and further that
the statute itself is unconstitutional[,]” and his jury trial began. 1 Before his trial
began, defendant made various oral arguments to the trial court addressing his
contentions that the charges against him should be dismissed. The trial court denied
defendant’s oral motions but stated it would withhold its ruling on defendant’s pre-
trial written motion to dismiss challenging the constitutionality of the statute. The
jury found defendant guilty, and the trial court entered judgment in accordance with
the verdict. Thereafter, the trial court entered a written order denying defendant’s
motion to dismiss on constitutional grounds, on both facial and as-applied challenges.
Defendant appealed.
1 While the transcript notes defendant’s trial began on 9 July 2014, the record indicates it
actually began on 9 June 2014. Further confirming the June date is the fact that the jury verdict,
judgment, and defendant’s notice of appeal were filed or entered in June of 2014, so the trial could not
have occurred in July of 2014.
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II. Motion to Dismiss
Defendant raises two separate arguments as to why his motions to dismiss
should have been allowed.
This Court reviews the trial court’s denial of a
motion to dismiss de novo. Upon defendant's motion to
dismiss, the question for the Court is whether there is
substantial evidence (1) of each essential element of the
offense charged, or of a lesser offense included therein, and
(2) of defendant’s being the perpetrator of such offense. If
so, the motion is properly denied. Substantial evidence is
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. In making its
determination, the trial court must consider all evidence
admitted, whether competent or incompetent, in the light
most favorable to the State, giving the State the benefit of
every reasonable inference and resolving any
contradictions in its favor.
State v. Larkin, ___ N.C. App. ___, ___, 764 S.E.2d 681, 689-90 (2014) (citations and
quotation marks omitted), disc. review denied, ___ N.C. ___, 768 S.E.2d 841 (2015).
A. Age of Victim in Prior Offense
Defendant first contends that “the trial court reversibly erred in ruling that
whether Fryou was subject to prosecution under N.C. Gen. Stat. § 14-208(a)(2) based
on having previously been convicted of an offense involving a victim less than 16 years
of age was a question of fact for the jury.” (Original in all caps.) The State indicted
defendant pursuant to North Carolina General Statute § 14-208.18(a)(2) which
provides:
It shall be unlawful for any person required to register
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Opinion of the Court
under this Article, if the offense requiring registration is
described in subsection (c) of this section, to knowingly be
at any of the following locations:
(1) On the premises of any place intended
primarily for the use, care, or supervision of
minors, including, but not limited to, schools,
children’s museums, child care centers,
nurseries, and playgrounds.
(2) Within 300 feet of any location intended
primarily for the use, care, or supervision of
minors when the place is located on premises
that are not intended primarily for the use,
care, or supervision of minors, including, but
not limited to, places described in subdivision
(1) of this subsection that are located in malls,
shopping centers, or other property open to
the general public.
N.C. Gen. Stat. § 14-208.18(a)(1)-(2) (2011). Subsection (c) of North Carolina General
Statute § 14-208.18 as referenced in subsection (a) provides:
Subsection (a) of this section is applicable only to persons
required to register under this Article who have committed
any of the following offenses:
(1) Any offense in Article 7A of this Chapter.
(2) Any offense where the victim of the offense
was under the age of 16 years at the time of
the offense.
N.C. Gen. Stat. § 14-208.18(c)(1)-(2) (2011).
The indictment stated that defendant had “been previously convicted of an
offense where the victim of the offense was under the age of 16 years at the time of
the offense.” Before the trial court defendant argued that his prior federal conviction
did not show that the victim was under 16 years old; essentially defendant was
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Opinion of the Court
requesting dismissal to the alleged failure in the indictment. Thereafter, the trial
court and both attorneys discussed whether determining the age of the victim in the
prior conviction was a question of fact for the jury or a question of law for the trial
judge. Ultimately, defendant stipulated that he was “required to register as a sex
offender, and that the victim was under the age of 16.” But a defendant may generally
not stipulate to a question of law. State v. Hanton, 175 N.C. App. 250, 253, 623 S.E.2d
600, 603 (2006) (“Stipulations as to questions of law are generally held invalid and
ineffective, and not binding upon the courts, either trial or appellate. This rule is
more important in criminal cases, where the interests of the public are involved.”
(citation, quotation marks, and ellipses omitted)). Thus, defendant’s argument on
appeal is that the issue of the victim’s age was a legal question and not a fact which
could be established by stipulation or by the jury’s determination.
The State contends that defendant did not preserve this issue for appeal both
because he switched his stance on whether the question of the victim’s age was a
factual or legal question and because of his stipulation. We disagree. Our review of
the transcripts indicates that both parties debated how to characterize the issue of
the victim’s age throughout the proceedings. Defendant does not on appeal take a
stand completely different than he did at trial. And although defendant did
ultimately stipulate to the victim’s age, he did so specifically under objection, only
because the trial court had rejected his prior arguments. Defendant’s strategic
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Opinion of the Court
decision to stipulate, under objection, based on an unfavorable decision by the trial
court, does not mean defendant did not preserve the issue for appellate review; it
simply means defendant played the hand he was dealt after his argument to the trial
court was unsuccessful.
As defendant was charged, North Carolina General Statute § 14-208.18(a)(2)
required the State to show, inter alia, that defendant was (1) a person required to
register under North Carolina General Statute Article 27A, Sex Offender
Registration Programs; (2) where the offense that required registration involved a
victim that was under 16 years old at the time of the offense; and (3) knowingly at
one of the proscribed locations. See N.C. Gen. Stat. § 14-208.18. Defendant contends
that our construction of North Carolina General Statute § 14-208.18(a)(2) should be
guided by State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, disc. review denied,
364 N.C. 439, 702 S.E.2d 794 (2010). In Phillips, this Court analyzed statutes
regarding satellite-based monitoring (“SBM”) to “determine whether the trial court
could properly conclude that defendant’s conviction of the offense of felonious child
abuse by the commission of any sexual act under N.C.G.S. § 14–318.4(a2) is an
aggravated offense as defined in N.C.G.S. § 14–208.6(1a).” Id. at 329, 691 S.E.2d at
107 (quotation marks omitted). This Court determined:
N.C.G.S. § 14–318.4(a2) provides: Any parent or
legal guardian of a child less than 16 years of age who
commits or allows the commission of any sexual act upon
the child is guilty of a Class E felony. Consequently, the
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Opinion of the Court
essential elements of felonious child abuse under
subsection (a2) are (1) the defendant is a parent or legal
guardian of (2) a child less than 16 years of age, (3) who
commits or allows the commission of any sexual act upon
that child. In comparison, the statutory definition of
aggravated offense requires that the offender (1) engage in
a sexual act involving vaginal, anal, or oral penetration (2)
with a victim of any age through the use of force or the
threat of serious violence or with a victim who is less than
12 years old.
Thus, as defendant asserts in his brief and as the
State concedes, an offender’s conviction of felonious child
abuse under N.C.G.S. § 14–318.4(a2) may or may not be a
conviction which results from the commission of a sexual
act involving penetration, which is required for an offense
to be considered an aggravated offense under N.C.G.S. §
14–208.6(1a). In other words, without a review of the
underlying factual scenario giving rise to the conviction,
which is prohibited under Davison, a trial court could not
know whether an offender was convicted under N.C.G.S. §
14–318.4(a2) because he committed a sexual act involving
penetration. In addition, while an aggravated offense is an
offense in which the offender has engaged in a specific type
of sexual act, an offender may be convicted of felonious
child abuse by the commission of any sexual act as a result
of either committing any sexual act upon a child less than
16 years of age, or as a result of allowing the commission
of any sexual act upon such a child. Thus, by examining
the elements of the offense alone, a trial court could not
determine whether a person convicted of felonious child
abuse by the commission of any sexual act necessarily
engaged in a specific type of sexual act himself. Further, if
an offense does not involve engaging in a sexual act
through the use of force or threat of serious violence, the
offense can only be found to be an aggravated offense if it
involves engaging in sexual acts involving penetration with
a victim who is less than 12 years old. However, felonious
child abuse by the commission of any sexual act provides
that the victim must be a child less than 16 years of age.
Since a child less than 16 years is not necessarily also less
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Opinion of the Court
than 12 years old, without looking at the underlying facts,
a trial court could not conclude that a person convicted of
felonious child abuse by the commission of any sexual act
committed that offense against a child less than 12 years
old. Therefore, in light of our review of the plain language
of the statutes at issue, we must conclude that the trial court
erred when it determined that defendant’s conviction
offense of felonious child abuse by the commission of any
sexual act under N.C.G.S. § 14–318.4(a2) is an aggravated
offense as defined under N.C.G.S. § 14–208.6(1a) because,
when considering the elements of the offense only and not
the underlying factual scenario giving rise to this
defendant’s conviction, the elements of felonious child abuse
by the commission of any sexual act do not fit within the
statutory definition of aggravated offense. Because we
must conclude that defendant was not convicted of an
aggravated offense in light of the rule in Davison, we must
remand this matter to the trial court with instructions that
it reverse its determination that defendant is required to
enroll in a lifetime SBM program.
Id. at 330-31, 691 S.E.2d at 107-08 (emphasis added) (citations, quotation marks,
ellipses, and brackets omitted). Thus, based upon Phillips, defendant contends that
we may only consider the elements of the particular crime, and not the underlying
facts, of his federal conviction for receiving child pornography and because the
elements do not require that the victim be under 16, but rather under 18, the State
has failed to demonstrate that defendant violated North Carolina General Statute §
14-208.18(a)(2) in that the victim was under 16 years old.
In contrast, in State v. Arrington, ___ N.C. App. ___, 741 S.E.2d 453 (2013),
this Court distinguished the Phillips, elements-based approach in a case regarding
child abduction:
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Opinion of the Court
A defendant commits the offense of abduction of
children when he without legal justification or defense,
abducts or induces any minor child who is at least four
years younger than the person to leave any person, agency,
or institution lawfully entitled to the child’s custody,
placement, or care. Thus, the statutory definition of
offense against a minor for purposes of SBM requires proof
of a fact in addition to the bare fact of conviction—that the
defendant is not the minor’s parent.
In the context of deciding whether a conviction was
an aggravated offense for SBM purposes, we have held that
the trial court is only to consider the elements of the offense
of which a defendant was convicted and is not to consider
the underlying factual scenario giving rise to the
conviction. Davison and the cases following it specifically
addressed whether a particular conviction could constitute
an aggravated offense. They did not address what the trial
court may consider in determining whether a conviction
qualifies as a reportable offense against a minor.
The plain language in the definition of aggravated
offense requires that courts consider the elements of the
conviction as it covers
any criminal offense that includes either of
the following: (i) engaging in a sexual act
involving vaginal, anal, or oral penetration
with a victim of any age through the use of
force or the threat of serious violence; or (ii)
engaging in a sexual act involving vaginal,
anal, or oral penetration with a victim who is
less than 12 years old.
The definition of offenses against a minor, by contrast, lists
certain, particular offenses, and then adds the
requirements that the victim be a minor and that the
defendant not be a parent of the victim.
Further, in concluding that trial courts are
restricted to considering the elements of the offense in
determining whether a given conviction was an aggravated
offense we noted a concern that defendants would be forced
to re-litigate the underlying facts of their case even if they
pleaded guilty to a lesser offense. This concern is absent in
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Opinion of the Court
the context of defining offenses against a minor. Trial
courts in this context do not need to inquire into whether
defendant’s conduct could have constituted a greater
offense, despite a plea to the lesser. They only need decide
whether the victim was a minor and whether defendant
was a parent of the minor child, facts that will normally be
readily ascertainable.
Because the statute explicitly requires that the State
show that defendant was not the parent of the minor victim
in addition to the fact that defendant was convicted of one
of the listed offenses, the statute effectively mandates that
the trial court must look beyond the offense of conviction.
Therefore, we hold that in deciding whether a conviction
counts as a reportable conviction under the offense against
a minor provision, the trial court is not restricted to simply
considering the elements of the offense for which the
defendant was convicted to the extent that the trial court
may make a determination as to whether or not the
defendant was a parent of the abducted child.
Id. at ___, 741 S.E.2d at 455-56 (emphasis added) (citations and quotation marks
omitted). Thus, in Arrington, this Court clarified that the trial court could look
beyond the bare elements and consider the underlying facts because not only did the
statute at issue require defendant have the prior conviction, but it also required a
further factual determination, separate and apart from that prior conviction. See id.
We conclude that the case before us is more similar to Arrington. See id.
In addition, to the extent that there may be any conflict between Phillips and
Arrington, there is a more fundamental reason that we are guided by Arrington.
Phillips involved SBM which is “a civil regulatory scheme[,]” and thus of limited use
in determining a criminal matter. State v. Wagoner, 199 N.C. App. 321, 332, 683
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Opinion of the Court
S.E.2d 391, 400 (2009) (“SBM is a civil regulatory scheme[.]”), aff’d per curiam, 364
N.C. 422, 700 S.E.2d 222 (2010); see Phillips, 203 N.C. App. 326, 691 S.E.2d 104. One
of the primary reasons that the trial court must rely only on the crime for which the
defendant was convicted in considering imposition of SBM is that the court is often
conducting a separate hearing regarding this civil regulatory matter, perhaps years
after the initial criminal conviction. Allowing evidence beyond the elements of the
crime for which the defendant was actually convicted would force him “to re-litigate
the underlying facts of [his] case even if [he] pleaded guilty to a lesser offense.”
Arrington, ___ at ___, 741 S.E.2d at 455-56. While SBM cases may provide some
guidance for interpreting statutes addressing sexual offenses, this case is a criminal
prosecution of a crime defined by a particular statute and does not concern the
imposition of a civil regulatory remedy. See generally Wagoner, 199 N.C. App. at 332,
683 S.E.2d at 400.
Just as in Arrington, here the statute at issue defines a criminal offense and
the definition requires not only a separate prior offense but an additional fact coupled
with that prior offense. Compare Arrington at ___, 741 S.E.2d at 456. In Arrington,
“the statute explicitly require[d] that the State show that defendant was not the
parent of the minor victim in addition to the fact that defendant was convicted of one
of the listed offenses” and from that this Court concluded that “the statute effectively
mandates that the trial court must look beyond the offense of conviction.” Id.
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Opinion of the Court
(emphasis added). Similarly, here, the statute requires the State to show that
defendant had been convicted of an offense requiring registration and that the victim
of that offense was under 16 years old. See N.C. Gen. Stat. § 14-208.18(a).
Using a plain language analysis, see State v. Largent, 197 N.C. App. 614, 618,
677 S.E.2d 514, 517 (2009) (“Where the language of a statute is clear and
unambiguous there is no room for judicial construction and the courts must give it its
plain and definite meaning, and the courts are without power to interpolate, or
superimpose, provisions and limitations not contained therein.”) (citation and
quotation marks omitted), North Carolina General Statute § 14-208.18(a)(2) does not
require that the offense for which defendant registered have an element requiring
the victim to be under 16 years old, but only that the victim actually be under 16
years old. See id. In other words, there was no dispute here that defendant had been
convicted of a registrable offense, but since that offense did not include as an element
a requirement that the victim was under the age of 16, the State must also prove that
the victim of that crime was actually younger than 16 at the time of the offense.2 See
id. Accordingly, the age of the victim was a factual question, and defendant could
properly stipulate to it. The trial court did not err in denying defendant’s request for
dismissal regarding this element, so this argument is overruled.
B. Knowing Element
2 Of course, if one of the elements of the underlying crime is that the victim is younger than
16, proof of the conviction itself would suffice.
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Defendant also contends that “the trial court reversibly erred in denying
Fryou’s motion to dismiss at the close of evidence because the State failed to produce
substantial evidence that Fryou had knowledge of the existence of a preschool on the
premises of the Banner Elk Presbyterian Church.” (Original in all caps.) The State
argues again that defendant has not preserved this issue for appeal, but we have
reviewed the transcript, and we find defendant’s attorney’s argument during the
motion to dismiss regarding defendant’s “intent to go near a place where he knows he
can’t go” to be sufficient for review of the knowing element.
Again, when considering the evidence the trial court was to “consider all
evidence admitted, whether competent or incompetent, in the light most favorable to
the State, giving the State the benefit of every reasonable inference and resolving any
contradictions in its favor.” Larkin, ___ N.C. App. at ___, 764 S.E.2d at 690. The
State’s evidence tended to show that the church advertised the preschool with flyers
throughout the community, on its website, and with signs around the church. The
entrance to the church office, where defendant met with the pastor, was also the
entrance to the nursery and had a sign explicitly stating the word “nursery[;]” thus,
even if defendant had not seen the advertisements of the preschool, he walked
through the door which had a sign indicating the presence of the nursery and the jury
could infer from this that he was thus informed of the nursery, but instead of leaving,
entered the church anyway.
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Opinion of the Court
Even so, defendant contends that the evidence just noted does not demonstrate
that he should have known children were actually on the premises at the same time
that he was. Yet the actual presence of children on the premises is not an element of
the crime, and the State needed only to demonstrate that defendant was “knowingly”
“[w]ithin 300 feet of any location intended primarily for the use, care, or supervision
of minors when the place is located on premises that are not intended primarily for
the use, care, or supervision of minors” whether the minors were or were not actually
present at the time. See N.C. Gen. Stat. § 14-208.18(a)(2). We conclude there was
“substantial evidence” that defendant knew a child care facility was being operated
on the premises. Larkin, ___ N.C. App. at ___, 764 S.E.2d at 689. This argument is
overruled.
II. Overbreadth
Defendant contends that “Section 14-208.18(A)(2) of the North Carolina
General Statutes is unconstitutionally overbroad on its face because it fails to require
proof of criminal intent and therefore criminalizes a substantial amount of
constitutionally protected conduct.” (Emphasis added). (Original in all caps).
In challenging the constitutionality of a statute, the
burden of proof is on the challenger, and the statute must
be upheld unless its unconstitutionality clearly, positively,
and unmistakably appears beyond a reasonable doubt or it
cannot be upheld on any reasonable ground. When
examining the constitutional propriety of legislation, we
presume that the statutes are constitutional, and resolve
all doubts in favor of their constitutionality.
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Opinion of the Court
A law is impermissibly overbroad if it deters a
substantial amount of constitutionally protected conduct
while purporting to criminalize unprotected activities.
Legislative enactments that encompass a substantial
amount of constitutionally protected activity will be
invalidated even if the statute has a legitimate application.
State v. Mello, 200 N.C. App. 561, 564, 684 S.E.2d 477, 479-80 (2009) (citations,
quotation marks, brackets, and heading omitted), aff’d per curiam, 364 N.C. 421, 700
S.E.2d 224 (2010).
Defendant plainly presents his argument as a facial rather than an as-applied
challenge arguing that “[w]hen raising an overbreadth challenge, the challenger has
the right to argue the unconstitutionality of the law as to the rights of others, not just
as the ordinance is applied to him. Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.
Ct. 298, 37 L. Ed. 2d 830, 840 (1973).”
Broadrick states that
the Court has altered its traditional rules of standing to
permit—in the First Amendment area—attacks on overly
broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could
not be regulated by a statute drawn with the requisite
narrow specificity. Litigants, therefore, are permitted to
challenge a statute not because their own rights of free
expression are violated, but because of a judicial prediction
or assumption that the statute’s very existence may cause
others not before the court to refrain from constitutionally
protected speech or expression.
Broadrick v. Oklahoma, 413 U.S. 601, 612, 37 L. Ed. 2d 830, 840 (1973) (citation and
quotation marks omitted); see County Court of Ulster v. Allen, 442 U.S. 140, 155, 60
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L. Ed. 2d 777, 790 (1979) (“[I]f there is no constitutional defect in the application of
the statute to a litigant, he does not have standing to argue that it would be
unconstitutional if applied to third parties in hypothetical situations. A limited
exception has been recognized for statutes that broadly prohibit speech protected by
the First Amendment.”) (citation omitted)). But defendant’s contentions regarding
North Carolina General Statute § 14-208.18(a) do not relate to speech or expression
under the First Amendment in any way. Defendant did not argue either before the
trial court or on appeal in his original brief that he was going to the church to worship
or assert any other right protected by the First Amendment; in fact, defendant’s brief
does not identify a specific constitutional amendment or provision, state or federal,
upon which his argument as to unconstitutional overbreadth could be based. Since
defendant’s argument is not based upon First Amendment rights, Broadrick cannot
confer standing on defendant. See Broadrick, 413 U.S. at 612, 37 L. Ed. 2d at 840.
And since defendant does not make an overbreadth argument as to any other
identifiable constitutional right, even if it may be theoretically possible to do so, his
argument fails.
III. Vagueness
Defendant’s remaining constitutional argument is that the statute is
unconstitutionally vague as applied to him. He argues that
Section 14-208.18(a)(2) of the North Carolina General
Statutes is unconstitutionally vague as applied to Fryou
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because the statute contemplates two distinct physical
locations, one on the premises of the other and both
operational at the same times, and in Fryou’s case there
was only one distinct physical location, a church, that
occasionally operated a preschool on its premises.
(Original in all caps.)
The standard of review for questions concerning
constitutional rights is de novo. Furthermore, when
considering the constitutionality of a statute or act there is
a presumption in favor of constitutionality, and all doubts
must be resolved in favor of the act. In passing upon the
constitutionality of a statute there is a presumption that it
is constitutional, and it must be so held by the courts,
unless it is in conflict with some constitutional provision.
State v. Daniels, 224 N.C. App. 608, 621, 741 S.E.2d 354, 363 (2012) (citations,
quotation marks, and brackets omitted), disc. review denied and appeal dismissed,
366 N.C. 565, 738 S.E.2d 389 (2013).
[A] statute is unconstitutionally vague if it either: (1) fails
to give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited; or (2) fails to
provide explicit standards for those who apply the law. A
statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.
Id. at 622, 741 S.E.2d at 364 (citations and quotation marks omitted).
Again, North Carolina General Statute § 14-208.18(a) provides in pertinent
part:
It shall be unlawful for any person required to register
under this Article, if the offense requiring registration is
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described in subsection (c) of this section, to knowingly be
at any of the following locations:
(1) On the premises of any place intended
primarily for the use, care, or supervision of
minors, including, but not limited to, schools,
children’s museums, child care centers,
nurseries, and playgrounds.
(2) Within 300 feet of any location intended
primarily for the use, care, or supervision of
minors when the place is located on premises
that are not intended primarily for the use,
care, or supervision of minors, including, but
not limited to, places described in subdivision
(1) of this subsection that are located in malls,
shopping centers, or other property open to
the general public.
N.C. Gen. Stat. § 14-208.18(a).
Defendant first essentially contends that North Carolina General Statute § 14-
208.18(a)(2) is vague in situations where premises serve a dual purpose by arguing
“the statute contemplates that one location be dedicated to the use, care, or
supervision of minors and that the other location not be so dedicated such that it is
lawful for a sex offender to be at the location that is not dedicated to the use, care, or
supervision of minors.” Yet North Carolina General Statute § 14-208.18(a)(2) directly
addresses defendant’s argument and plainly prohibits him from being “[w]ithin 300
feet” of any premises, no matter its purpose, if within that premises there is “any
location intended primarily for the use, care, or supervision of minors[.]” N.C. Gen.
Stat. § 14-208.18(a)(2). While North Carolina General Statute § 14-208(a)(1) plainly
prohibits defendant from being within 300 feet of certain locations, like preschools,
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STATE V. FRYOU
Opinion of the Court
(a)(2), takes the prohibition a step further, into defendant’s situation, and also
prohibits defendant from being at premises, like churches, if those premises include
areas primarily used for “the use, care, or supervision of minors[.]” Id.
Defendant argues that North Carolina General Statute §14-208.18(a)(2) would
bar sex offenders from many types of businesses and locations. This is correct, since
this subsection specifically includes “malls, shopping centers, or other property open
to the general public.” N.C. Gen. Stat. § 14-208.18(a). Indeed, it may be unlikely that
a sex offender could drive a car through a town in North Carolina and not come within
300 feet of some sort of store, restaurant, park, hospital, or school which would be
included under North Carolina General Statute §14-208.18(a)(2), since so many of
these locations have within them specific areas “primarily for the use, care, or
supervision of minors[.]” Id. Other subsections of North Carolina General Statute §
14-208.18 set forth some specific exemptions which, under certain limited conditions,
permit a registered sex offender to be present on premises that would otherwise be
off limits, including school property to address the needs of his own child, a voting
place, or a facility providing medical care. See N.C. Gen. Stat. § 14-208.18. But
defendant’s vagueness argument is more properly a challenge to the facial
constitutionality of the statute and is actually an overbreadth argument, but as noted
above, defendant failed to argue any violation of First Amendment rights in his
original brief, and thus has no grounds for an overbreadth challenge. See Broadrick,
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STATE V. FRYOU
Opinion of the Court
413 U.S. at 612, 37 L. Ed. 2d at 840. Defendant’s argument here is based on
vagueness, and North Carolina General Statute § 14-208.18(a)(2) may be many
things, but it is not vague.3 See N.C. Gen. Stat. § 14-208.18(a)(2). As applied to
defendant, it is quite clear that North Carolina General Statute § 14-208.18(a)(2) bars
sex offenders from being within 300 feet of a church which contains a preschool. See
id.
Defendant further stresses the dual purposes of the church premises and also
argues that “[a] person of ordinary intelligence would have inferred that a sign at a
church that simply read, ‘Nursery,’ meant there was a nursery at the church for
parents to drop their children at while they worshipped in the sanctuary on
SUNDAYS.” But as we noted, nothing in North Carolina General Statute § 14-
208.18(a)(2) states that the location “primarily for the use, care, or supervision of
minors” must be in operation for defendant to be prohibited from being within 300
feet. See N.C. Gen. Stat. § 14-208.18(a)(2). In fact, North Carolina General Statute
§ 14-208.18(a)(2) avoids the vagueness that defendant contemplates by addressing
the purpose of the location rather than if the location is open or not or whether there
are actually children present at a particular time. In other words, the question is
3 While the language in North Carolina General Statute § 14-208.18(a)(2) may raise other
constitutional issues, defendant has only raised vagueness as an as-applied challenge, and thus, it is
all we address.
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STATE V. FRYOU
Opinion of the Court
what a “person of ordinary intelligence,” Daniels, 224 N.C. App. at 622, 741 S.E.2d at
364, would believe the purpose of the location to be; we believe that a reasonable
person would say a preschool or nursery’s4 primary purpose is caring for children,
even if the preschool happened to be closed to the public at the time. Under the
statute as written, a sex offender need not wonder if the preschool is open or not, or
if children are present, or if it is open but being used to host some other type of event
like a staff holiday party; thus, in this situation, no matter the time of day or day of
the week, the location was a preschool or nursery and obviously has a primary
purpose of “the use, care or supervision of minors” so defendant violated the statute.
See N.C. Gen. Stat. § 14-208.18(a)(2). The trial court therefore correctly ruled that
North Carolina General Statute § 14-208.18(a)(2) is not unconstitutionally vague, and
this argument is overruled.
V. Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges CALABRIA and TYSON concur.
4 While the focus of the State’s case was on the preschool the church operated during the week,
often in the nursery area, there was actually also a church nursery used in the more traditional
fashion, to care for children on Sunday morning while their parents attend services. The terms
“preschool” and “nursery” are used interchangeably in the evidence to describe the location, but there
is no dispute regarding the existence of a child care facility as described throughout this opinion,
regardless of the exact terminology used. Both “preschool” and “nursery” clearly denote locations
which provide care and supervision for young children.
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