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Criminal Practice – Sex Offender Registration – ‘Danger to the Community’ – Risk of Reoffending

Even though defendant had 20 prior felony convictions when he was convicted of the current peeping offenses, the state did not show that any of his previous convictions involved violence or that they were sexual in nature. Since the state failed to show that defendant posed a risk of engaging in sex offenses following release from incarceration, it failed to show he was a danger to the community who should be required to register as a sex offender.

We reverse the trial court’s order requiring defendant to register as a sex offender, and we remand for resentencing.

Contrary to the state’s contention, the absence of a risk assessment or expert testimony fails to support that defendant poses a risk of committing sex offenses upon release from incarceration.

Even if the trial court had relied on defendant’s mental health in reaching its determination, there was insufficient evidence about defendant’s mental health for it to serve as competent evidence that he was a danger to the community. The state offered no evidence showing that there was a connection between defendant’s diagnosed mental conditions and the commission of sex offenses or recidivism generally. Relatedly, although defendant’s failure to take his prescribed medications on the date in question may have led defendant to commit these offenses, the state failed to present evidence establishing that link or that defendant habitually failed to take his medications.

Finally, the trial court’s reliance on defendant’s current convictions to support a finding that defendant was a danger to the community was improper. If the General Assembly had intended that a conviction for peeping – in and of itself – would show that a defendant was a danger to the community, it would have included such offense in G.S. § 14-208.6(4)(a).

Reversed and remanded.

State v. Guerrette (Lawyers Weekly No. 012-169-18, 9 pp.) (Linda McGee, C.J.) Appealed from New Hanover County Superior Court (Jay Hockenbury, J.) Regina Cucurullo for the state; Emily Davis for defendant. N.C. App. Unpub.

 

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