Remember to actually raise the First Amendment argument on appeal – N.C. Court of Appeals

State v. Fryou. This is a case about a sex offender charged with being on the premises of a preschool in violation of N.C.G.S. § 14-
208.18(a). Really, though, this is a case about making sure to raise the right arguments in an appellate brief.

Defendant went to a church to meet with the pastor, but the church had a preschool on the premises, so he was charged with violation of § 14-
208.18(a). At trial, he made both oral and written motions to dismiss the charges for a number of reasons, including as-applied and facial challenges to the constitutionality of the statute. The trial court denied oral motions, but withheld ruling on written motions. The jury found the defendant guilty, and the court entered judgment, and a written order denying the written motions to dismiss. Defendant appealed.

First, Defendant made a few arguments for reversal unrelated to the First Amendment. He argued that the question of whether he had been previously convicted of a crime involving a victim under 16 years old (as required by the statute) was a question of law for the judge. The trial court concluded it was a question of fact for the jury. Defendant stipulated that he was required to register as a sex offender, and that the victim was under 16. But, if the question was one of law, Defendant could not stipulate to it. Defendant argued that under 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), the court could only consider the elements of the prior crime, and not the underlying facts. He argued that his prior conviction did not require that the victim be under 16, but under 18. The court rejected the argument. The court concluded that, under State v. Arrington, ___ N.C. App. ___, 741 S.E.2d 453 (2013), “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 [(the age)], separate and apart from that prior conviction.” Because age was a factual question, Defendant could properly stipulate to it.

Defendant also argued that the trial court erred in denying his motion to dismiss based on the states failure to prove his knowledge of the preschool. But, the evidence showed that the preschool was widely advertised. More importantly, the DOOR TO THE CHURCH through which he walked WAS LABELED “NURSERY”! Actual knowledge of whether children are present is not an element of the crime. The knowing mens rea requirement applies to being “[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” even if no minors are actually present.

“First Amendment” Arguments

Defendant argued that the statute is unconstitutionally overbroad on its face, and impermissibly vague. The court rejected both arguments.

On overbreadth:


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 only presented his argument as a facial, not an as-applied challenge. This means that, under Broadrick v. Oklahoma, 413 U.S. 601, 612, 37 L. Ed. 2d 830, 840 (1973), he only needed to demonstrate that his his conduct could not be regulated by the statute because the statute’s very existence may cause others to refrain from constitutionally protected speech or expression. But regardless, he failed to argue any First Amendment implications:


… 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.

Full disclosure: I am taking the appellate opinion as gospel (pardon the pun) because I haven’t read the brief. It may be the Court ignored the First Amendment argument, but that seems unlikely.

On vagueness:

[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.


The Defendant made an as-applied challenge, arguing that the statute contemplates distinct physical locations, operating at the same time in the same place. But, here it was the same location: the church. The church included a nursery. Moreover, the court explains that the statute does not require he stay off the premises, but not come within 300 feet of the premises if within that premises there is any location intended primarily for the use, care or supervision of minors. He argues that the church nursery would be presumably for Sunday usage, but the court points out again that the premises need not actually be in use to fall within the basic meaning of the statute.

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.

The statute is pretty clear.

The opinion includes an interesting bit of dicta in discussing the vagueness claim, in which it hints at a potential constitutional overbreadth argument.

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[.]” 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. 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.


While this Defendant apparently failed to raise any actual First Amendment argument, the next may not.