224 N.C. App. 608
N.C. Ct. App.2012Background
- Defendant is a convicted and registered sex offender with prior rapes and assault offenses.
- He was indicted for violating 14-208.18(a)(3) at two Dare County parks where minors gather.
- Two indictments (06 Dec 2010) charged violations of 14-208.18(a)(3) only; no charge under (a)(2).
- Trial court held 14-208.18(a)(2) and (a)(3) unconstitutional as vague and overbroad and dismissed charges.
- The State appeals, arguing lack of jurisdiction, lack of standing, and that the statutes are not unconstitutionally vague/overbroad.
- Court must determine whether (a)(2) and (a)(3) are separate offenses and whether the trial court had jurisdiction to rule on (a)(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had subject matter jurisdiction to rule on (a)(2). | State: (a)(2) and (a)(3) are severable; indictments only charged (a)(3) so (a)(2) ruling was improper. | Defendant: (a)(2) is a separate offense; the court can address constitutionality of all provisions. | Vacated portion; court lacked jurisdiction to rule on (a)(2). |
| Whether (a)(2) and (a)(3) are separate offenses for jurisdiction/indictment purposes. | State: the three subsections create independent offenses. | Defendant: the structure could render (a)(2) invalid if inseparable; need separation validity. | Three subsections are separable; indictments charged (a)(3) only, affecting jurisdiction over (a)(2). |
| Standing to challenge (a)(3) facially and as applied. | N/A (State contends Defendant cannot raise facial challenge). | Defendant lacks standing for facial challenge but may challenge (a)(3) as applied. | Defendant lacks standing for facial challenge but has as‑applied standing for vagueness as to 6- and 7‑May incidents. |
| Whether (a)(3) is unconstitutionally vague as applied to the 6 May 2009 incident. | Statute is vague as to “at any place” without clear definition. | The facts show proximity to parking lot; ambiguity prevents clear notice. | Unconstitutionally vague as applied to 6 May 2009 incident. |
| Whether (a)(3) is unconstitutionally vague as applied to the 7 May 2009 incident. | Same ambiguity as applied to 6 May—unclear what “at any place” covers. | Conduct on adult softball field adjacent to tee-ball field could be protected. | Unconstitutionally vague as applied to 7 May 2009 incident. |
Key Cases Cited
- State v. Hardy, 298 N.C. 191, 257 S.E.2d 426 (1979) (1979) (indicia of due process; need for definite criminal statutes)
- State v. Willis, 285 N.C. 195, 201, 204 S.E.2d 33, 37 (1974) (1974) (indictment/waiver essential to jurisdiction; charging document importance)
- State v. Wolfe, 158 N.C. App. 539, 581 S.E.2d 117 (2003) (2003) (indictment sufficiency and jurisdiction rules cited)
- State v. Fredell, 283 N.C. 242, 195 S.E.2d 300 (1973) (1973) (severability and legislative intent in severable provisions)
- State v. Barker, 138 N.C. App. 304, 531 S.E.2d 228 (2000) (2000) (standing and vagueness in applied contexts)
- Sanford Video & News, Inc., 146 N.C. App. 554, 553 S.E.2d 218 (2001) (2001) (vagueness standards for unconstitutional statutes)
- State v. Nesbitt, 133 N.C. App. 420, 515 S.E.2d 503 (1999) (1999) (standing/vagueness framework for facial vs as‑applied challenges)
- Herman, State v. Herman, N.C. App. , 726 S.E.2d 867 (2012) (2012) (discusses separate elements for subsections of 14-208.18(a))
- Harris, State v. Harris, N.C. App. , 724 S.E.2d 633 (2012) (2012) (examines essential elements of (a)(1) and severability context)