No. COA12-417 1ST DISTRICT

NORTH CAROLINA COURT OF APPEALS

***************************************

STATE OF NORTH CAROLINA )) From Dare County

v. ))

WILLIAMS PERCY DANIELS )

****************************************************

DEFENDANT-APPELLEE'S BRIEF

****************************************************

INDEX

TABLE OF CASES AND AUTHORITIES.................iii

ISSUES PRESENTED.................................1

STATEMENT OF THE FACTS...........................2

ARGUMENT:

I. SECTION 14-208.18 CREATES A SINGLE OFFENSE, ALLOWING REVIEW OF ITS CONSTITUTIONALITY AS A WHOLE RATHER THAN PIECEMEAL.................3

II. THE STATE WAIVED ANY CHALLENGE TO STANDING BY FAILING TO ASSERT SUCH AN ARGUMENT AT THE TRIAL COURT.................................8

III. SECTION 14-208.18 IS UNCONSTITUTIONALLY OVERBROAD ON ITS FACE BECAUSE IT CRIMINALIZES A SUBSTANTIAL AMOUNT OF INNOCENT, CONSTITUTIONALLY PROTECTED CONDUCT WITHOUT ANY REQUIREMENT THAT THE STATE PROVE CRIMINAL INTENT......................................9

1. Section (a)(2) requires no proof of criminal intent........................9

2. Section (a)(2) criminalizes the exercise of fundamental rights.................12

3. Section (a)(2) is not narrowly tailored or the least restrictive means available......................................17

4. Conclusion............................22

IV. SECTION 14-208.18 IS UNCONSTITUTIONALLY VAGUE BECAUSE ORDINARY PEOPLE AND LAW ENFORCEMENT CANNOT DETERMINE WHAT CONDUCT IS PROHIBITED, LEADING TO A CHILLING OF THE EXERCISE OF RIGHTS AND ARBITRARY AND DISCRIMINATORY ENFORCEMENT................................23

V. SECTION 14-208.18 ALLOWS ARREST WITHOUT PROBABLE CAUSE IN VIOLATION OF THE FOURTH AMENDMENT..................................33

VI. SECTION 14-208.18 VIOLATES THE RIGHTS TO FREEDOM OF SPEECH, RELIGION, WORSHIP, ASSEMBLY, ASSOCIATION, AND DUE PROCESS.....34

VII. SECTION 14-208.18 IS UNCONSTITUTIONAL AS APPLIED....................................34

CONCLUSION......................................35

CERTIFICATE OF FILING AND SERVICE...............36

APPENDIX...............................A-1 to A-14

WESCOTT PARK (DEFENSE EXHIBIT 1)...........A-1

WALKER PARK (DEFENSE EXHIBIT 2)............A-2

H.B. 933, Edition 1, Session 2007(N.C. 2007)..............................A-3

H.B. 933, Edition 2, Session 2007(N.C. 2007)..............................A-4

H.B. 933, Edition 3, Session 2007(N.C. 2007)..............................A-5

H.B. 933, Edition 4, Session 2007(N.C. 2007)..............................A-6

Session Law 2008-117, Session 2007(N.C. 2007)..............................A-7

H.B. 1317, Edition 2, Session 2009(N.C. 2009)..............................A-8

N.C.P.I. Crim. 207.72......................A-9

DOWNTOWN 1................................A-10

DOWNTOWN 2................................A-11

INDOOR MALL AND MOVIE THEATERS............A-12

HOSPITAL..................................A-13

STRIP MALL................................A-14

-ii-

TABLE OF CASES AND AUTHORITIES

United States Supreme Court

Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316 (1964)........32

Broadrick v. Oklahoma , 413 U.S. 601, 93 S. Ct. 2908 (1973)......8

Buckley v. Valeo, 424 U.S. 1, 25, 96 S. Ct. 612 (1976).........17

City of Chicago v. Morales , 527 U.S. 41, 119 S. Ct. 1849(1999)...................................................9, 23

Employment Div. v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990).14

Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294(1972)..................................................23, 32

Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923)..........16

NAACP v. Alabama, 357 U.S. 449, 78 S. Ct. 1163 (1958)..........17

Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839 (1972)...........................................7, 10, 11, 13

Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329 (1997).............22

Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244 (1984)......................................................13

Schneider v. New Jersey, 308 U.S. 147, 60 S. Ct. 146 (1939)....22

Screws v. United States, 325 U.S. 91, 65 S. Ct. 1031 (1945)....10

Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242 (1974)...........33

Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243 (1969)........13

United States v. Reese, 92 U.S. 214, 23 L. Ed. 563 (1876)......24

United States v. Stevens, 130 S. Ct. 1577, 176 L.Ed.2d 435 (2010)35

Federal Circuit Courts of Appeal and District Courts

Clark v. City of Los Angeles, 650 F.2d 1033 (9th Cir. 1981)....12

Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012).....13

-iii-

Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002)....16

Lutz v. City of York, 899 F.2d 255 (3d Cir. 1990)..............17

Thomas S. By Brooks v. Flaherty, 699 F. Supp. 1178 (W.D.N.C. 1988).......................................................13

North Carolina

Hest v. State, 725 S.E.2d 10, 2012 N.C. App. LEXIS 328 (N.C. Ct. App. 2012)...................................................8

In re Williams, 269 N.C. 68, 152 S.E.2d 317 (1967).............14

Standley v. Woodfin, 186 N.C. App. 134, 650 S.E.2d 618(2007)..................................................16, 17

Standley v. Woodfin, 362 N.C. 328, 661 S.E.2d 728 (2008).......16

State v. Culp, 30 N.C. App. 398, 226 S.E. 2d 841 (1976)........22

State v. Evans, 73 N.C. App. 214, 326 S.E.2d 303 (1985)....10, 22

State v. Doughtie, 237 N.C. 368, 74 S.E. 2d 922(1953)..........22

State v. Green, 103 N.C. App. 38, 404 S.E.2d 363 (1991).........8

State v. Herman, COA 11-1291, 2012 N.C. App. LEXIS 717 (N.C. Ct. App. June 5, 2012)......................................24, 25

State v. Mello, 200 N.C. App. 561, 684 S.E.2d 477(2009)..............................6, 7, 8, 9, 10, 12, 23, 33

Treants Enterprises, Inc. v. Onslow County, 83 N.C. App. 345, 350 S.E.2d 365 (1986)........................................8, 35

Treants Enterprises, Inc. v. Onslow County, 94 N.C. App. 453, 380 S.E.2d 602 (1989)........................8, 12, 13, 17, 18, 21

Wuchte v. McNeil, 130 N.C. App. 738, 505 S.E.2d 142 (1998).....16

Other States

Ohio v. Burnett, 93 Ohio St.3d 419 (2001)......................17

-iv-

United States Constitution

Amend. I...........................................12, 23, 34, 35

Amend. IV..................................................33, 35

Amend. V...........................................12, 23, 34, 35

Amend. XIV.........................................12, 23, 34, 35

North Carolina Constitution

Art. I, Sec. 1.........................................12, 23, 35

Art. I, Sec. 12........................................12, 23, 35

Art. I, Sec. 13....................................12, 14, 23, 35

Art. I, Sec. 14........................................12, 23, 35

Art. I, Sec. 19........................................12, 23, 35

North Carolina General Statutes

Section 14-202.3...............................................21

Section 14-202.5...............................................22

Section 14-208.6...........................................20, 21

Section 14-208.7...............................................21

Section 14-208.11A.........................................15, 33

Section 14-208.12A.............................................21

Section 14-208.16..............................................19

Section 14-208.18..........................................passim

Section 14-208.40A.........................................20, 21

Section 14-208.40B.............................................20

Section 14-415.1................................................5

Section 15A-1340.50............................................21

-v-

Section 15A-1343(b2).......................................20, 21

Section 110-86.................................................29

North Carolina Rules of Appellate Procedure

Rule 10.........................................................8

North Carolina Pattern Jury Instructions

N.C.P.I. Crim. 207.72...........................................9

-vi-

No. COA12-417 1ST DISTRICT

NORTH CAROLINA COURT OF APPEALS

***************************************

STATE OF NORTH CAROLINA )) From Dare County

v. ))

WILLIAMS PERCY DANIELS )

****************************************************DEFENDANT-APPELLEE'S BRIEF

****************************************************

ISSUES PRESENTED

I. WHETHER SECTION 14-208.18 CREATES A SINGLE OFFENSE, ALLOWING REVIEW OF ITS CONSTITUTIONALITY AS A WHOLE RATHER THAN PIECEMEAL.

II. WHETHER THE STATE WAIVED ANY CHALLENGE TO STANDING BY FAILING TO ASSERT SUCH AN ARGUMENT AT THE TRIAL COURT.

III. WHETHER SECTION 14-208.18 IS UNCONSTITUTIONALLY OVERBROAD ON ITS FACE BECAUSE IT CRIMINALIZES A SUBSTANTIAL AMOUNT OF INNOCENT, CONSTITUTIONALLY PROTECTED CONDUCT WITHOUT ANY REQUIREMENT THAT THE STATE PROVE CRIMINAL INTENT.

IV. WHETHER SECTION 14-208.18 IS UNCONSTITUTIONALLY VAGUE BECAUSE ORDINARY PEOPLE AND LAW ENFORCEMENT CANNOT DETERMINE WHAT IS PROHIBITED, LEADING TO A CHILLING OF THE EXERCISE OF RIGHTS AND ARBITRARY AND DISCRIMINATORY ENFORCEMENT.

V. WHETHER SECTION 14-208.18 ALLOWS ARREST WITHOUT PROBABLE CAUSE IN VIOLATION OF THE FOURTH AMENDMENT.

VI. WHETHER SECTION 14-208.18 VIOLATES THE RIGHTS TO FREEDOM OF SPEECH, RELIGION, ASSEMBLY, ASSOCIATION, AND DUE PROCESS.

VII. WHETHER SECTION 14-208.18 IS UNCONSTITUTIONAL AS APPLIED.

STATEMENT OF THE FACTS

Pastor Carrie Holmes of the Free Grace Church of Christ in

Manteo testified Mr. Daniels has been a member there all of his

life. (T. pp. 36-40). He attends regularly and participates in

the choir and men's fellowship. (T. p. 41). Pastor Holmes knows

Mr. Daniels is a convicted and registered sex offender. (T. p.

45). She supports his church attendance and believes it helps

him. (T. p. 47). Mr. Daniels has never engaged in inappropriate

behavior at the church. (T. p. 46). Grace Church has a

sanctuary, attached fellowship hall, and Sunday School rooms for

children. (T. pp. 38-39). The children's rooms are within 300

feet of the sanctuary, parking lot, and the street. (T. p. 52).

People of all ages attend regularly scheduled educational

programs and services on Sundays. (T. pp. 41, 42, 49). Grace

Church holds a regularly scheduled one week Vacation Bible School

for 80-90 children ages four to nineteen every July. Pastor

Holmes said in her religion it is important to worship together

as a "fellowship of believers." (T. p. 44).

Pastor Holmes did not know about statutory premises

restrictions that could result in criminal prosecution until Mr.

Daniels was charged in this case. (T. p. 45). She said that

even if she faced charges of aiding and abetting Mr. Daniels by

allowing him to worship at her church, she would do so because

"it will be unfair not to allow him to be spiritually fed and I

think I would be willing to suffer the consequences of my

actions. There is a higher law." (T. p. 55).

-2-

Mr. Daniels' daughter, Ms. Chuquita Freeman, testified that

her seventeen year old son recently died and that she wanted to

hold a memorial service at the Dare County Community Center. (T.

pp. 74-75). She wanted Mr. Daniels to attend but was concerned

he might violate section 14-208.18 because the community center

is also the Head Start Center. (T. p. 75). After consulting

with Mr. Daniels' attorney, she decided to hold the memorial

service at a restaurant instead. (T. p. 76). Mr. Daniels'

daughter, Kelleta Govan, testified she lives in Manteo. (T. pp.

6, 18). Two of her neighbors operate family child care homes

within 300 feet of her home. (T. p. 19; R. p. 97).

Color copies of Defense Exhibits 1 and 2, aerial photographs

of the parks at issue here, have been submitted, and are included

in the Appendix.

ARGUMENT

I. SECTION 14-208.18 CREATES A SINGLE OFFENSE, ALLOWING REVIEW OF ITS CONSTITUTIONALITY AS A WHOLE RATHER THAN PIECEMEAL.

The trial court had jurisdiction to hold North Carolina

General Statute section 14-208.18 is unconstitutional because

section 14-208.18 creates a single offense, "Sex offender

unlawfully on premises," which can be violated by being at or

near a variety of locations described in the statute. The

presence of a person at or near places used by and for minors is

the gravamen, or gist of the offense. Section 14-208.18 is a

single offense which lists several types of locations where the

offense occurs. The various subsections simply recite various

manifestations of what is a unitary, presence offense.

-3-

The text and construction of the statute itself establish it

is a single offense. Subsection (a) states: "It shall be

unlawful for any person required to register under this Article .

. . to knowingly be at any of the following locations:" and then

lists three categories of locations. Internally, the statute

refers to "a person subject to subsection (a)" showing subsection

(a) is a single offense. N.C. Gen. Stat. § 14-208.18(b), (d),

(e), (f), (g), & (g1). Subsection (h) makes "a violation of this

section" a Class H felony. It does not refer to "violations" or

"sections" which would suggest there are several offenses created

by 14-208.18. Subsection (a)(2) uses the phrase "places

described in subdivision (1)" which shows subsections (1), (2),

and (3) are descriptions of places that are off-limits--not

separate offenses. There is no "or" between the subsections,

which might suggest separate offenses. Instead, the sections

simply list off-limits locations, enumerated for ease of

reference, and overlap significantly in the premises they

describe.

The manner of pleading a violation of 14-208.18 shows it is

a single offense. All the indictments here are titled "sex

offender on child premises" and allege a violation of "14-

208.18(A)." (R. pp. 7-11). The indictments allege Mr. Daniels

was knowingly at "Walker Park" and "The Lions Club Center at

Wescott Park." (R. pp. 8, 11). The indictments then allege

Walker Park and Wescott Park are places where "minors gather for

regular [sic] scheduled educational, recreational, or social

programs." (R. pp. 8, 11). The form of the indictment tracks

-4-

the form of the statute, showing the gravamen of the offense is

Mr. Daniels' presence at Walker and Wescott Parks. The

indictments' descriptions of Walker and Wescott Parks show how

Walker and Wescott Parks are locations covered by the statute.

Section 14-208.18 is similar to the offense of possession of

a firearm by a felon. N.C. Gen. Stat. § 14-415.1. The offense

is being a felon and possessing a firearm. The object possessed

must be a firearm, but it is irrelevant whether it is a pistol or

shotgun. The gravamen of the offense is possession of a firearm,

and its indictment alleges the person possessed a firearm and

describes the object possessed to show it is a firearm. Here,

the descriptions of the parks in the indictments show that the

locations are used by or for minors. Section 14-208.18 creates a

single "unit of prosecution." Otherwise, a location that can be

described by more than one of the subsections could result in

more than one conviction for the same conduct: presence.

The legislative history of section 14-208.18 demonstrates it

is a single offense. (Copies of the draft bills referenced

herein are attached in the Appendix). The first draft of 14-

208.18(a) listed numerous types of prohibited locations in a

lengthy list without enumerated subsections. H.B. 933, Edition

1, Session 2007 (N.C. 2007). The second draft stated in

subsection (a) simply that it was unlawful "to be on a premise

that a reasonable person knows is a place where children

regularly congregate without adult supervision." H.B. 933,

Edition 2, Session 2007 (N.C. 2007). The third and fourth drafts

created an offense that described by numerical subsections

-5-

various prohibited locations, which were similar to those in the

first draft. H.B. 933, Editions 3 & 4, Session 2007 (N.C. 2007).

The General Assembly ultimately passed section 14-208.18 as set

out in Session Law 2008-117, Session 2007 (N.C. 2007), with

subsection (a) virtually identical to that in drafts 3 and 4. A

proposed but failed amendment in 2009 would have added six more

subsections to section 14-208.18(a). H.B. 1317, Edition 2,

Session 2009 (N.C. 2009).

Section 14-208.18's drafts show the General Assembly created

a single offense that prohibited a person's presence at a

protected location. The bill ultimately enacted shows a

progression of clarity in the statute where the drafters

enumerated locations in numerical subsections, rather than

include all locations in a single, lengthy sentence, as in the

first drafts. Rather than creating separate offenses, the

General Assembly described locations in three, general types in

subsections (a)(1), (2), and (3). Nothing in 14-208.18 states

that the subsections are separate offenses. The attempt to add

additional subsections in 2009 shows an effort to further

describe locations, not to create six new offenses.

This Court and others have construed similar statutes to be

single offenses and have reviewed their constitutionality in toto

without regard to the specific theory under which the defendant

was charged. In State v. Mello, 200 N.C. App. 561, 684 S.E.2d

477 (2009), this Court held a city ordinance unconstitutional

that prohibited loitering under "circumstances" manifesting the

purpose to violate the North Carolina Controlled Substances Act.

-6-

The ordinance had seven subsections describing various

"circumstances." The indictment in Mello alleged the defendant

violated only two subsections. Id. at 564, 684 S.E.2d at 479.

This Court held the entire ordinance was unconstitu-tionally

overbroad because it did not require proof of criminal intent and

it criminalized a substantial amount of constitu-tionally

permissible conduct. Id. at 566, 684 S.E.2d at 481.

In Papachristou v. City of Jacksonville, 405 U.S. 156, 163,

92 S. Ct. 839, 843 (1972), the United States Supreme Court held a

city ordinance prohibiting vagrancy to be overbroad and vague.

The Supreme Court addressed six vagrancy convictions based on

"prowling by auto," being "vagabonds," "loitering," being a

"common thief," "disorderly loitering on street," and "disorderly

conduct." Papachristou, 405 U.S. at 158, 92 S. Ct. at 841. The

statute at issue, however, listed a significant number of ways in

which a person could commit the offense of vagrancy. Id. at n.1.

The Supreme Court did not limit its holding to only the specific

ways in which the six defendants violated the statute. Id. at

171, 92 S. Ct. at 847. The Supreme Court held the entire statute

unconstitutional.

In Mello and Papchristou the ordinances were held

unconstitutional as a whole because they were "presence" offenses

that lacked a requirement of proof of intent and burdened

constitutionally protected liberties. Similarly here, section

14-208.18 describes various locations where a person violates the

single offense created by the statute. There is no requirement

of proof of criminal intent, regardless of whether the specific

-7-

location alleged is described in (a)(1), (2), or (3). If this

Court holds that the lack of intent or the criminalization of a

substantial amount of constitutionally permissible conduct is

fatal, then it is fatal to the entire statute. Thus, the trial

court had jurisdiction to hold the statute's blanket prohibition

of Mr. Daniels and others from being at or 300 feet from certain

places was unconstitutional on its face and as applied.

II. THE STATE WAIVED ANY CHALLENGE TO STANDING BY FAILING TO ASSERT SUCH AN ARGUMENT AT THE TRIAL COURT.

The State failed to argue to the trial court that Mr.

Daniels lacked standing to facially challenge 14-208.18, and

thereby failed to preserve the issue for review. N.C. R. App. P.

Rule 10(a)(1); Treants Enterprises, Inc. v. Onslow County, 83

N.C. App. 345, 349, 350 S.E.2d 365, 368 (1986); Cf. State v.

Green, 103 N.C. App. 38, 41-42, 404 S.E.2d 363, 365-66 (1991).

Even if this Court considers the State's standing argument,

this Court has held 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." State v. Mello, 200

N.C. App. 561, 564, 684 S.E.2d 477, 480 (2009); (citing Broadrick

v. Oklahoma , 413 U.S. 601, 612-615, 93 S. Ct. 2908, 2917-18

(1973)); Hest v. State, 725 S.E.2d 10, 14, 2012 N.C. App. LEXIS

328 **10, n.2 (N.C. Ct. App. 2012); Treants Enterprises, Inc. v.

Onslow County, 94 N.C. App. 453, 380 S.E.2d 602 (1989); see also

City of Chicago v. Morales , 527 U.S. 41, 52, 119 S. Ct. 1849,

1857 (1999). Section 14-208.18 substantially inhibits the

-8-

exercise of First Amendment and corresponding North Carolina

constitutional guarantees, namely the rights to free speech,

religion, assembly, and association.

Mr. Daniels has standing to raise a facial vagueness

challenge to section 14-208.18. "When vagueness permeates the

text of such a law, it is subject to facial attack." Morales,

527 U.S. at 55, 119 S. Ct. at 1858 (internal citations omitted).

Like the ordinances in Morales and Mello, section 14-208.18 is a

criminal statute with no mens rea requirement that infringes on

constitutionally protected rights.

Mr. Daniels has standing to raise an as-applied challenge.

The application of 14-208.18 to his innocent presence in public

prevents him from exercising his rights to express himself by

being in a public location, to worship, to assemble, to

associate, and to intrastate travel.

III. SECTION 14-208.18 IS UNCONSTITUTIONALLY OVERBROAD ON ITS FACE BECAUSE IT CRIMINALIZES A SUBSTANTIAL AMOUNT OF INNOCENT, CONSTITUTIONALLY PROTECTED CONDUCT WITHOUT ANY REQUIREMENT THAT THE STATE PROVE CRIMINAL INTENT.

1. Section 14-208.18 requires no proof of criminal intent.

To prove a person violated 14-208.18, the State does not

have to prove he acted with any criminal intent or that he

planned any wrongdoing. See N.C.P.I. Crim. 207.72 (Appendix A-

9). A person can be convicted for being at an ill-defined

location even if there for innocent reasons, such as socializing

with his daughter, playing softball with a community team, going

to a county fair with family, or going to church. There is no

requirement for the State to prove the person intended to remain

-9-

in the prohibited zone. The offense is a strict liability

offense. A person violates the statute by walking through a

prohibited zone even if he is only in transit through or past the

location without any intent to remain "at" the location.

Section 14-208.18 is no different than anti-loitering

statutes which have routinely been held unconstitutionally

overbroad for lack of any requirement to prove criminal intent in

addition to the loitering behavior. In Papachristou v. City of

Jacksonville, 405 U.S. 156, 163, 92 S. Ct. 839, 843 (1972), the

United States Supreme Court held a city ordinance prohibiting

vagrancy facially overbroad, where there was no requirement for

the State to prove the defendant loitered with intent to commit a

crime. Similarly, this Court held a city ordinance

unconstitutionally overbroad on its face in Mello, 200 N.C. App.

at 561, 684 S.E.2d at 477. The ordinance made it unlawful for

"any person to remain or wander about in a public place under

circumstances manifesting the purpose to engage in a violation of

the North Carolina Controlled Substances Act." Id. This Court

stated that "[b]ecause the Ordinance fails to require proof of

intent, it attempts to curb drug activity by criminalizing

constitutionally permissible conduct." Id. at 566, 684 S.E.2d at

480-81; see also Screws v. United States, 325 U.S. 91, 103, 65 S.

Ct. 1031, 1036 (1945) (holding specific intent requirement makes

otherwise overbroad statute constitutional); State v. Evans, 73

N.C. App. 214, 326 S.E.2d 303 (1985) (upholding anti-loitering

ordinance because it included element of criminal intent and

-10-

distinguishing it from unconstitutional "status offenses" such as

simple loitering).

Here, the State argued that the requirement in 14-208.18 of

proof that the person was "knowingly at" a prohibited location

equates to an intent to commit a crime. State's Brief, p. 28.

The State erroneously equates "knowledge" with intent to commit a

criminal offense as the terms have been used in overbreadth

cases. Papachristou, Mello, and Evans are clear that a criminal

statute prohibiting a person's "mere presence" must require proof

of an intent to commit a crime, not just knowledge that the

person is violating the statute in question itself.

"Future criminality" is "the common justification" for

vagrancy and anti-loitering statutes. Papachristou, 405 U.S. at

169, 92 S. Ct. at 847. The purpose of such laws is to "nip"

crime "in the bud." Id. at 171, 92 S. Ct. at 848. "Arresting a

person on suspicion, like arresting a person for investigation is

foreign to our system, even when the arrest is for past

criminality." Id. at 169, 92 S. Ct. at 847. A "direction by a

legislature to the police to arrest all 'suspicious' persons

would not pass constitutional muster." Id. "A presumption that

people . . . who look suspicious to the police are to become

future criminals is too precarious for a rule of law." Id.

Section 14-208.18's purpose is no different: prevent future

crimes. In an attempt to prevent crimes, the statute

criminalizes constitutionally permissible conduct without any

requirement that the person is in the prohibited location with

the intent to commit any crime, whether against a minor or adult.

-11-

It criminalizes his presence even if no minor is present at the

time. It allows arrest, prosecution, and deprivation of liberty

based solely on suspicion of future criminal behavior--suspicion

held by the General Assembly at the time it passed 14-208.18, and

not suspicion developed by a law enforcement officer at the time

of the possible misconduct. Section 14-208.18 tries to curb

crime by criminalizing presence and because it fails to require

proof of intent, is unconstitutionally overbroad.

2. Section 14-208.18 criminalizes the exercise of fundamental rights.

A statute that "criminalizes a substantial amount of

constitutionally permissible conduct is unconstitutionally

overbroad." Mello, 200 N.C. App. at 566, 684 S.E.2d at 481.

"'The overbreadth doctrine holds that a law is void on its face

if it sweeps within its ambit not solely activity that is subject

to governmental control, but also includes within its prohibition

the practice of a protected constitutional right.' " Treants, 94

N.C. App. at 458, 380 S.E.2d at 604 (quoting Clark v. City of Los

Angeles, 650 F.2d 1033 (9th Cir. 1981)). Section 14-208.18 is

unconstitutionally overbroad because it effectively criminalizes

the exercise of the rights to free speech, religion, worship,

assembly, association, and intrastate travel guaranteed by the

First, Fifth, and Fourteenth Amendments to the United States

Constitution, and Sections 1, 12, 13, 14, and 19, of Article I,

of the North Carolina Constitution.

The First Amendment protects the right to speak as well as

the right to receive information and ideas, even for a convicted

-12-

sex offender. Stanley v. Georgia, 394 U.S. 557, 564, 89 S. Ct.

1243, 1247 (1969); Doe v. City of Albuquerque, 667 F.3d 1111

(10th Cir. 2012). Section 14-208.18 effectively prohibits not

only a person's right to be in a public place of his choice to

engage in affirmative, speech-related activity, but also the

passive act of receiving speech and information, since a person

violates the section merely by being at or 300 feet from a

prohibited location, even if he does not communicate with anyone.

First Amendment expressive freedoms include the right to stroll,

wander, loaf, and loiter, with or without any purpose.

Papachristou, 405 U.S. at 164-65, 92 S. Ct. at 844. Doing so

without any criminal intent is protected First Amendment

expressive freedom. Section 14-208.18, however, prevents a

person from the expressive activity of being and walking where he

chooses. This includes Mr. Daniels' fundamental right to simply

be in a public place.

Section 14-208.18 prohibits a person from associating when

and where he chooses. "Freedom of association is a fundamental

right, implicit in the concept of ordered liberty." Treants, 94

N.C. App. at 458, 380 S.E.2d at 604 (quoting Thomas S. By Brooks

v. Flaherty, 699 F. Supp. 1178, 1203 (W.D.N.C. 1988)). First Amendment freedoms of association include engaging in and maintaining human relationships and associating with others for the purpose of engaging in expressive activity. Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S. Ct. 3244, 3249 (1984). Whether associating with members of a softball team, associating with his family at a memorial

service, or associating with fellow worshipers at church, Mr.

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Daniels is unable to associate as he chooses without fear of

prosecution.

Section 14-208.18 limits a person's ability to exercise his

religion and worship where he chooses. Where the free exercise

of religion is impacted in conjunction with other constitutional

rights, the First Amendment "bars application of a neutral,

generally applicable law to religiously motivated action."

Employment Div. v. Smith, 494 U.S. 872, 879, 881, 110 S. Ct.

1595, 1600-01 (1990). Section 14-208.18 impacts Mr. Daniels'

right to the free exercise of religion and his rights to free

speech, assembly, and association at his chosen church.

Section 14-208.18 violates Section 13, of Article I of the

North Carolina Constitution which protects the right to worship.1

The North Carolina Supreme Court has held the protections of

Section 13 are co-extensive with the federal constitution. In re

Williams, 269 N.C. 68, 78, 152 S.E.2d 317, 325 (1967). The Court

in Williams stated the liberty secured by Section 13 is so basic

and fundamental that governmental action affecting it can be

justified only by a compelling state interest. Id. Section 14-

208.18 eliminates a person's ability to enter or walk within 300

feet of most houses of worship, as most have at least one room

designated for the use of children, even if only on the day of

worship. Under the State's interpretation of section 14-208.18--

1 Section 13 states: "All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience."

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that children need not be present for the offense to occur--

churches are off-limits 24 hours a day, 365 days a year.

The possibility of prosecution of a person who innocently

attends church is real. At the hearing on Mr. Daniels' motion,

the trial court considered the cases of State v. Nichols and

Demaio, from Chatham County, in which the defendants were

indicted for violating 14-208.18 for attending church.2 (T. pp.

180-82). The church they attended had a nursery with children

during worship services and was described in the indictments as

locations under (a)(2) and (a)(3). Memorandum Opinion and Order

p. 4, ¶ 5, State v. Nichols. The pastor knew Mr. Nichols was a

registered sex offender and allowed him to worship. Id. p. 4, ¶

3. Upon Mr. Nichols' and Mr. Demaio's arrests, the pastor tried

to accommodate their spiritual needs by planning an adults-only

Bible study when no children were present, but abandoned the

plans because it could not be determined if they would still

violate the law by being in the church.3 Id. pp. 5-6, ¶ 14. The

Honorable Superior Court Judge Allen Baddour held 14-208.18(a)(2)

and (3) facially overbroad and vague in part because it

interfered with federal and state constitutional rights to the

free exercise of religion. Id. p. 12, ¶ 9. Judge Baddour

dismissed the charges.

Section 14-208.18 also burdens a person's ability to have a

job and work. If a person has a job at a business where children

2 The Order in Nichols which was considered by the trial judge here is in the Record on Appeal at pages 52-67.

3 The pastor could have faced criminal prosecution for allowing Mr. Nichols or Mr. Demaio to continue attending his church. N.C. Gen. Stat. § 14-208.11A.

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regularly gather, or that is located within a football field's

length of a covered location, he violates the statute every time

he works. A person could never work at or within 300 feet of a

McDonald's with a play area. A person could never work at or

within 300 feet of a church with a nursery, even if minors were

in the nursery only on Sundays and the person worked only on

weekdays. One of the liberty interests guaranteed by the Due

Process Clause of the Fourteenth Amendment to the United States

Constitution is "the right 'to engage in any of the common

occupations of life,' unfettered by unreasonable restrictions

imposed by actions of the state or its agencies." Wuchte v.

McNeil, 130 N.C. App. 738, 743, 505 S.E.2d 142, 146 (1998)

(quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).

Lastly, section 14-208.18 infringes on the fundamental right

to intrastate travel and freedom of movement protected by the

Fifth and Fourteenth Amendments to the United States

Constitution. In Standley v. Woodfin, this Court held a city

ordinance banning sex offenders from town parks did not violate

the federal constitutional right to intrastate travel because the

ordinance did not "impair [the plaintiff's] daily functions" and

because it was "restrictive only to defendant's public parks."

Standley v. Woodfin, 186 N.C. App. 134, 136, 650 S.E.2d 618, 621

(2007), affirmed, 362 N.C. 328, 661 S.E.2d 728 (2008). See also

Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002)

(holding "the Constitution protects a right to travel locally

through public spaces and roadways."); Lutz v. City of York, 899

F.2d 255, 259-68 (3d Cir. 1990); Ohio v. Burnett, 93 Ohio St.3d

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419 (2001) (holding "drug-exclusion zone" violated federal

constitutional right to travel).

The statute here does not even use the word "park" and does

not prohibit a person from being only in a park. Unlike the

narrow ordinance in Woodfin, section 14-208.18 significantly

burdens a person's daily functions. It applies not only to parks

but innumerable public and private locations spread throughout

cities, and can turn an entire downtown into a "sex-offender

exclusion zone." See Appendix A-10 & A-11.4 Because of off-

limits locations and a 300 foot zone around them, Mr. Daniels is

not able to enjoy innocent passage on sidewalks and streets

through or past covered locations without risking prosecution.

He is not just prohibited from being "at" the parks here, but

from walking or driving past them. He cannot even stand in a

parking lot to give his daughter onion bulbs.

3. Section 14-208.18 is not narrowly tailored or the least restrictive means available.

To limit constitutionally protected rights, a state must

show a "compelling state interest." NAACP v. Alabama, 357 U.S.

449, 78 S. Ct. 1163 (1958); Treants, 94 N.C. App. at 459, 380

S.E.2d at 605. A state must also employ "means closely drawn to

avoid unnecessary abridgment of associational freedoms" in

achieving its objectives. Buckley v. Valeo, 424 U.S. 1, 25, 96

S. Ct. 612, 638 (1976); Treants, 94 N.C. App. at 459, 380 S.E.2d

at 605. Section 14-208.18 does not survive strict scrutiny.4 The locations in the Appendix are intended only as visual illustrations of the written descriptions of locations in this Brief, similar to sketches a reader of this Brief might draw to visualize the hypotheticals presented. They are not submitted as facts from outside the record.

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Section 14-208.18 is not narrowly tailored in the types of locations it affects. Instead, it puts a virtual fence around churches, community centers, restaurants, parks, hospitals, and courthouses. It applies to public as well as private property.

Section 14-208.18 is not narrowly tailored in its spatial reach.5 It criminalizes a person's mere presence at a location, regardless of how far he is from the area actually used by and for children. It criminalizes mere presence within a football field's length of the property boundary even before a person sets foot in a structure or on the property. It applies regardless of physical barriers (such as walls, chain-link fences, highways, or rivers) to a person's entry into a structure or onto an outdoor property where children are located. It applies to an entire property, regardless of whether the portion of the property used for children is a small portion of the larger property. A person cannot drive or ride a bus down many streets, much less walk on the sidewalks, past covered locations without violating 14-208.18. He violates 14-208.18 by parking in a surrounding parking deck, working in a nearby building, or living in a downtown apartment. An offense occurs regardless of the fact he is separated from the locations by other buildings and streets. See Appendix A-10 and A-11.

Appendix A-12 shows an indoor shopping mall with two play areas for children. Because the primary purpose of the play area is for children, a person violates the law by walking or driving through the parking lot within 300 feet of the play areas, even though solid walls and retail stores are between them. If the mall has a regularly scheduled social program for children, such as a Christmas music program, then the entire mall would be

5 A proposed but failed amendment in 2009 would have eliminated the 300 foot zone. H.B. 1317, Edition 2, Session 2009 (N.C. 2009) (Appendix A-8).

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off-limits year-round, even if the music occurs in a small, discrete part of the mall only one week a year.

Because of the spatial reach of 14-208.18, it is a de facto residency restriction, expanding the types of locations (schools and child care centers) already covered under N.C. Gen. Stat. § 14-208.16. Both parks here, shown in Defense Exhibits 1 & 2 (Appendix A-1 & A-2) sit within 300 feet of homes. A person would violate section 14-208.18 by living beside either park.

The statute is not narrowly tailored in its temporal

application because it applies regardless of whether children are

present, and regardless of how often a "regularly scheduled"

program occurs. To achieve the State's interest in protecting

minors it is not necessary to ban a person's presence "at" or 300

feet from a location 24 hours a day, 365 days a year. A narrowly

tailored statute, employing the least restrictive means possible,

would at least require proof the regularly scheduled program was

then occurring, that children were present when the offense

occurred, that the person knew children were present, and that he

had the specific intent to commit an offense.

Lastly, 14-208.18 is over-inclusive and under-inclusive. It

is over-inclusive because it treats all covered registered sex

offenders the same, regardless of the offense committed, the age

of the victim of the offense, the location of the offense, and

the likelihood of reoffending. It burdens more persons, and more

rights, than necessary to achieve the purported goals of the

statute--the protection of minors. There is no mechanism for

"judicial tailoring" of the over-inclusive class of persons and

rights. Unlike other sex offender regulation statutes, there is

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no judicial or administrative determination of whether a

particular person is dangerous, likely to stalk and groom

children, likely to commit an offense against a child, or likely

to recidivate. See N.C. Gen. Stat. §§ 14-208.6, 14-208.40A & 14-

208.40B (judge determines applicability and length of

registration and satellite based monitoring after considering

evidence); 15A-1343(b2)(4) & (b2)(5) (judge determines conditions

of probation related to sex offenders being around minors

individually); 15A-1343(b2)(6) (judge determines other conditions

of probation, like staying away from certain locations). Here,

the General Assembly cast a one-size-fits-all net that makes no

accommodation for the actual purpose of the statute--protecting

minors.

Section 14-208.18 is under-inclusive because it arbitrarily

applies only to sex offenders during the period of registration.

If the purpose is to protect children from sex offenders, then

registration is an arbitrary demarcation of which sex offenders

must stay away from covered locations. Nothing in the history of

the sex offender control laws or the evidence presented by the

State at trial shows that a sex offender becomes less likely to

commit an offense against a minor simply because he is no longer

on the registry. See N.C. Gen. Stat. § 14-208.12A (removal can

occur after only ten years on the registry).

Less restrictive means to protect children already exist:

Chapter 14, N.C. General Statutes (prohibiting sexual assaults of

minors); N.C. Gen. Stat. § 14-202.3 (prohibiting use of

electronic communications to solicit a minor to engage in a sex

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act); §§ 14-208.6, 14-208.7, & 14-208.40A (requiring address and

online identifier registration up to thirty years and, in some

cases, lifetime satellite-based monitoring); § 14-208.16

(prohibiting residence within 1000 feet of a school or child care

center); § 15A-1343(b2) (allowing specialized sex offender

probation conditions); § 15A-1340.50 (allowing permanent no

contact order). Lack of success by law enforcement in enforcing

these statutes is not sufficient grounds to restrict constitu-

tional rights. Treants, 94 N.C. App. at 460, 380 S.E.2d at 606.

A narrowly tailored statute would not prohibit mere presence

on a public sidewalk, worshiping at church, getting medical

treatment at a hospital,6 visiting one's daughter at her home,

going to a courthouse, or working in an empty building.

Suggestions that people can find other places to exercise these

rights and not violate 14-208.18 is meritless. See State's Brief

at p. 27 (suggesting alternatives for Mr. Daniels' exercise of

religion). In the context of First Amendment freedoms, the

United States Supreme Court has held that simply because other

ways to exercise a person's rights exist does not eliminate the

unconstitutional nature of a restrictive statute. Schneider v. New Jersey, 308 U.S. 147, 163, 60 S. Ct. 146, 151 (1939); Reno v. ACLU, 521 U.S. 844, 880, 117 S. Ct. 2329, 2349 (1997). In reality, few places exist where a person can eat, shop, work, or worship,

without violating 14-208.18. Use of the Internet is restricted, where a person might at least engage in some speech, association, religious activity, 6 Section 14-208.18(g) provides an exception for juveniles, but not adults, to seek medical treatment at a covered location, even if it violates 14-208.18.

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work, entertainment, and shopping. N.C. Gen. Stat. § 14-202.5. Suggestions that there are "other options" to engage in constitutionally protected conduct are therefore meaningless.

4. Conclusion

"Mere presence in a public place cannot constitute a crime."

Evans, 73 N.C. App. at 217, 326 S.E.2d at 306. Mere presence on

a softball field playing with a community team, at church to

worship, in line outside the fence of a county fair, or on a

street 300 feet away from an ill-defined location, cannot

constitute a crime. The premises restrictions here banish citizens from entire buildings and sections of towns7 and deter a substantial amount of their constitutionally protected conduct" "while purporting to criminalize unprotected activities." Mello, 200 N.C. App. at 564, 684 S.E.2d at 479-80. Section 14-208.18 is therefore unconstitutionally overbroad in violation of the First, Fifth, and Fourteenth Amendments to the United States Constitution, and Sections 1, 12, 13, 14, and 19, of Article I of the North Carolina Constitution.

IV. SECTION 14-208.18 IS UNCONSTITUTIONALLY VAGUE BECAUSE ORDINARY PEOPLE AND LAW ENFORCEMENT CANNOT DETERMINE WHAT IS PROHIBITED, LEADING TO A CHILLING OF THE EXERCISE OF RIGHTS AND ARBITRARY AND DISCRIMINATORY ENFORCEMENT.

Due process requires a criminal statute be sufficiently precise to give notice of what conduct is prohibited and to ensure the law does not permit or encourage law enforcement to enforce the law and deprive a person of liberty interests in an arbitrary or discriminatory manner. Morales, 527 U.S. 7 "The concept of banishment has been broadly defined to include orders compelling individuals '. . . to quit a city, place, or country, for a specific period of time, or for life.' " State v. Culp, 30 N.C. App. 398, 399, 226 S.E. 2d 841, 842 (1976). Banishment is traditionally considered a punishment that, if ordered by a court, is a void sentence. State v. Doughtie, 237 N.C. 368, 369-71, 74 S.E. 2d 922, 923-24 (1953).

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at 56, 103 S. Ct. at 1859. A criminal statute can be invalidated if the statute is vague for either reason. Vague criminal laws are disfavored because they may discourage the lawful exercise of constitutional rights, trap the innocent by not providing fair warning, and "impermissibly delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2299 (1972). "The Constitution does not permit a legislature to 'set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.' " Morales, 527 U.S. at 60, 119 S. Ct. at 1861 (quoting United States v. Reese, 92 U.S. 214, 221, 23 L. Ed. 563, 566 (1876)).

Section 14-208.18 does not give notice to a reasonable person of whether his conduct is illegal.8 Section 14-208.18 fails to give notice to non-sex offenders who minister to, work with, or spend time with sex offenders in possibly prohibited places, so they do not risk prosecution under 14-208.11A. The statute's vagueness encourages law enforcement, prosecutors, and even park managers to enforce the law in an arbitrary and discriminatory way and puts in their hands the interpretation, application, and enforcement of the law on an ad hoc basis.9

First, the term "knowingly" is vague. Does the term mean the person is awake, conscious, and aware? Or does it refer to the person's knowledge

8 Even the written notice given to a person by the State simply recites the statute's text without explanation or examples. (R. p. 94).

9 Mr. Tim White, Dare County Public Services Director, testified that at least two other registered sex offenders had been at a park, but instead of calling the police, Mr. White asked them to leave, and they were not charged. (T. p. 91; R. p. 71). The trial court's finding of fact that it was one person is clearly erroneous. Compare T. p. 91, lines 20-21 and R. p. 71 ¶ 12).

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that a "location" is covered by the statute? Does it mean he knows minors are actually present? Does it mean he knows where a 300 foot zone starts and stops? Does it mean he knows educational, recreational, and social programs are regularly scheduled for minors? Is the offense instantaneous and occurs when a person who is at a location suddenly realizes ("knows") children use the location? During oral arguments in State v. Herman, COA 11-1291, 2012 N.C. App. LEXIS 717 (N.C. Ct. App. June 5, 2012), the State asserted that if a person enters a prohibited location without the requisite knowledge but later becomes aware he is in a prohibited location, although at that instant he is in violation of the statute, he can trust law enforcement and prosecutors to use discretion not to charge him so long as he leaves immediately.

Second, the term "be at" in (a) is vague. Is a person "at" a place if his physical presence is transitory, or must he remain a certain amount of time? Can a person walk past a nursery or children's museum within 300 feet without violating the statute if he does not stop? Does a person violate the statute if he drives through the parking lot of a McDonald's with a children's play area only to get to an adjacent gas station? The State conceded this is a violation during oral arguments in Herman. Does the term "at" apply to an entire building or property, even if a regularly scheduled program for minors is held in a separate, inaccessible, distant, part of the building? Is a person "at" a location described in (a)(3) if he is in the parking lot, or does he have to physically enter the building? Does it matter if the building's owner does not own the parking lot, but shares it with other businesses?

A strict application of the term "at" leads to absurd results. Appendix A-10 shows a children's museum, church nursery, and teen center in the basement of a courthouse and post office. If the term "be at" applies literally

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to an entire structure, a person could not attend court or use the post office because a teen club is in the basement, even if minors are not present, because the location has regularly scheduled social programs. If a person cannot be "at" a location within 300 feet of any of these individual locations, and "be at" is taken literally, then he cannot walk, drive, or ride a bus down the street or the street parallel and behind it. He cannot go to court or the post office because he is technically "at" the church nursery across the street which is within 300 feet.

Third, the statute does not define the term minor. How old is a minor? Subsection (g) uses the term "juvenile." Is "juvenile" synonymous with "minor?"

Fourth, the statute uses the terms "location," "premises," "any place," and "property" but provides no definitions of those terms. Are the terms synonymous? How large does a "location" in (a)(2) or "any place" in (a)(3) have to be to qualify as a "location" or a "place?" Take for example a public restaurant with wall-mounted baby-changing stations in the restrooms as a convenience for patrons with babies. Unquestionably, a baby-changing station is intended primarily for the "use and care" of minors. But is it a "location" under the statute which triggers a requirement that a person stay 300 feet away? If so, a covered person would never be able to enter any building that has a baby-changing station in the restroom.

Conversely, in (a)(3), how large can the restrictive boundaries of "any place" be where minors gather for regularly scheduled educational, recreational, and social programs? How are those boundaries defined, and by whom? Minors gather at the University of North Carolina for regularly scheduled educational and recreational programs held all over campus. Does that make the entire campus off-limits, or just the buildings in which

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the programs are held? Can UNC decide what portions of the campus are off-limits or does law enforcement decide? If a basketball camp is regularly scheduled at the Smith Center every summer, can a person go to a musical performance across campus at Memorial Hall? Is the place contemplated by the statute defined by walls, property boundaries, or simply the limits of where minors are permitted to go during the gathering itself?

Another example of the difficulty in defining the size of the restrictive boundaries of "any place" in (a)(3) is a city parking deck with a roof-top public plaza. The plaza is open to the public and, during the summer, children's movies are shown every Thursday night. Do the regularly scheduled summertime social programs for minors make the entire parking deck an off-limits "place" or is just the outdoor rooftop plaza "any place?"

Fifth, the vague descriptions of locations in (a)(1), (2), and (3) create uncertainty about whether an offense is committed upon crossing a line 300 feet from a building or property, upon crossing the property boundary itself, or not until a person enters the door of a building. The phrase "located on premises that are not intended primarily for the use, care, or supervision of minors" is vague and creates the confusion. The examples in (a)(2) include locations "in malls, shopping centers, or other property open to the general public." It seems these descriptions illustrate a "location" like a children's gym in a storefront in a strip-mall because the entire strip-mall property is not intended for the use, care or supervision of minors. Appendix A-14. A person covered by the statute cannot walk within 300 feet of the gym without violating the statute. But is the interpretation of "located on premises" different if the gym is in a storefront in a row of businesses downtown, like a children's museum? Appendix A-10. Consider a free-standing child care center in a strip-mall parking lot. Appendix A-14. The

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center seems to be a location described in (a)(1). But because it is on the strip-mall property, is it "located on premises [the strip mall] that are not intended primarily for the use, care, and supervision of minors" and therefore falls under section (a)(2)? The distinction in both examples is significant because if a location is described by (a)(2), a person has to stay 300 feet away. If it falls under (a)(1), a person could walk or drive past within 300 feet and would violate the statute only by going "on the premises."

Another problem interpreting the "located on premises" language involves conjoined structures such as a hospital complex.10 Appendix A-13. Numerous buildings have independent medical purposes but share interior walls and are connected with interior hallways. There is a dedicated children's hospital, connected with the complex, that might at first glance be a location described in (a)(1) as primarily for the use and care of minors. However, the remainder of the hospital complex is not intended primarily for the use, care, or supervision of minors, but for people of all ages. Therefore, does the children's hospital fall under the descriptions of (a)(1) and not have a 300 foot exclusion zone, or does it have a 300 foot zone because it is "located on premises" not intended primarily for the use, care, or supervision of minors? If a 300 foot zone applies, a person cannot enter the main hospital because it is within 300 feet of the children's hospital entrance and wards. If the zone does not exist, he can go to the emergency room, but just not to the children's hospital. Does the complex qualify as a single or multiple "locations" requiring separate analyses of purpose? Does it matter that the "locations" are conjoined?10 Section 14-208.18(g) gives an exception for juveniles, but not adults, to seek medical treatment at a covered location.

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The confusion about whether a location has a 300 foot zone is important because Mr. Daniels' daughter lives in Manteo within 300 feet of two "family child care homes." The trial court's finding of fact in ¶ 9 that the day cares are "family child care centers" is clearly erroneous. They are "family child care homes." (T. p. 19; R. p. 97). A "family child care home" is different than a "child care center." N.C. Gen. Stat. § 110-86(3). The difference is legally significant because section (a)(1) prohibits a person from being only "on the premises" of a "child care center" and does not give it a 300 foot zone. A "family child care home," since not described specifically in (a)(1), and because it is located on premises that are not intended primarily for the use, care, and supervision of minors (ie. a private residence), falls under the general descriptions in (a)(2) and has a 300 foot zone. As such Mr. Daniels cannot visit and associate with his own daughter and grandchildren without violating the law.

Sixth, section 14-208.18 does not indicate if a minor must be "at" or "gathered" in the location for the statute to apply. Would Mr. Daniels have violated the statute if he worked on the night crew cleaning the park after all children had left? Would he violate the statute if he worshiped at his church completely alone in the building at 2:00 a.m. and no children were gathered anywhere therein? Or do the regularly scheduled T-ball and soccer games for minors forever create a "zone of protection" in and around the park all day, every day of the year?

Seventh, the statute is inconsistent on whether it applies to private property. The "malls, shopping centers, and other property" listed in (a)(2) apparently must be "open to the general public" to be covered. Locations in (a)(1) and (a)(3) have no such restrictions. Does the statute apply to a person's private swimming pool in his back yard if he regularly schedules

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swimming lessons (educational/recreational programs) for his neighbors' children every Saturday morning during the summer? Does a requirement for a membership to enter the premises make it not "open to the general public" and remove it from the protections of the statute, or just the 300 foot zone?

Eighth, the terms "intended primarily" and "for the use" in (a)(2) are vague. Whose intentions control? Who determines the "primary use?" Does 14-208.18 apply to a retail store that sells only children's shoes located in a large indoor shopping mall? Is such a location "intended primarily for the use" of minors? The owners of the store might say the intended primary purpose of the store is to make a profit but the owner of the shopping mall might advertise the primary purpose of the store is for minors. Is the location's primary use determined at the immediate time of the offense, or over a period of time prior to the offense? For example, if the primary purpose of a county fair is for the use of children, is the primary purpose for children even if the property is used for the fair only six days a year, and is used primarily for adults the rest of the year?

Ninth, the statute gives no direction on how 300 feet is measured. Is it measured from the center of the location or from an identifiable boundary such as a wall or property line? If the location is an outdoor park with no discernible boundaries, such as a fence, is 300 feet measured from the property line? How does a person know where that property line is? If the location is inside a structure, such as a Sunday School room in a church, is it measured from the walls of the individual rooms, the outer walls of the entire church, or the boundary of the property on which the church sits?

Tenth, is a "program" in (a)(3) "regularly scheduled" if it occurs only one day each year, and does that make a location off-limits the other 364

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days of the year? If so, presumably a property owner, whether a town or individual, could schedule a social event for minors on June 1 every year. By regularly scheduling the event, the owner could eliminate covered persons from ever being allowed "at" that place throughout the year. Kenan Stadium at UNC has regularly scheduled educational, recreational, and social programs for children such as the high school football state championship games. Do those regularly scheduled recreational programs transform Kenan Stadium into an off-limits location during the rest of the year when those programs are not being held?

Whose "regularly scheduled" programs control the restrictions on a place? If a town operates a park but has no regularly scheduled programs for minors, but a local Boy Scout Troop regularly meets at the park for educational, recreational, and social programs the first Saturday of each month, have the regularly scheduled programs turned the park into an off-limits "place" even though the property owner does not schedule the programs? How is a person supposed to know an event is regularly scheduled only once a year, or only on the first Saturday of each month that it is scheduled by private parties on public property, and that he is therefore banned?

"[W]here a vague statute 'abut[s] upon sensitive areas of basic First Amendment freedoms,' it 'operates to inhibit the exercise of [those] freedoms.' Uncertain meanings inevitably lead citizens to '"steer far wider of the unlawful zone" . . . than if the boundaries of the forbidden areas were clearly marked.' " Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99 (1972) (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 1323 (1964)). The existence of section 14-208.18 deters law-abiding people from engaging in innocent conduct and going places that may

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not be covered. It deters law-abiding non-sex offenders who work with, minister to, or just associate with covered persons, because it is impossible to tell if they are encouraging or participating in a violation of the law, thereby risking prosecution. N.C. Gen. Stat. § 14-208.11A. The vague proscriptions of section 14-208.18 force people to literally "steer far wider than the unlawful zone."

Because section 14-208.18 fails to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, leads to arbitrary and discriminatory enforcement, and permits "a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections," it is unconstitutionally vague and violates the First, Fifth, and Fourteenth Amendments to the United States Constitution, and Sections 1, 12, 13, 14, and 19 of Article I, of the North Carolina Constitution. Smith v. Goguen, 415 U.S. 566, 575, 94 S. Ct. 1242, 1248 (1974).

V. SECTION 14-208.18 ALLOWS ARREST WITHOUT PROBABLE CAUSE IN VIOLATION OF THE FOURTH AMENDMENT.Section 14-208.18 allows arrest without probable cause in

violation of the Fourth Amendment's prescription against

unreasonable seizures. Mello, 200 N.C. App. at 568, 684 S.E.2d

at 482. "Arresting a person on suspicion, like arresting a

person for investigation is foreign to our system, even when the

arrest is for past criminality." Papachristou, 405 U.S. at 169,

92 S. Ct. at 847. A "direction by a legislature to the police to

arrest all 'suspicious' persons would not pass constitutional

muster." Id. "A presumption that people . . . who look

suspicious to the police are to become future criminals is too

precarious for a rule of law." Id.

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Before an officer arrests a person, the Fourth Amendment

requires probable cause that an offense was committed. Section

14-208.18 does not require criminal intent to violate the

statute. Simply being at a location or within 300 feet of a

location constitutes an offense. Without a requirement of

criminal intent, section 14-208.18 allows arrest without probable

cause that a crime has been committed and thereby violates the

Fourth Amendment.

VI. SECTION 14-208.18 VIOLATES THE RIGHTS TO FREEDOM OF SPEECH, RELIGION, ASSEMBLY, WORSHIP, ASSOCIATION, AND DUE PROCESS.

Without repeating his arguments above, Mr. Daniels asserts

as independent grounds for invalidating section 14-208.18 that it

violates his fundamental rights to the free exercise of religion

and worship, assemble, to associate with others, to free speech,

to intrastate travel, to be free from unreasonable seizures, and

to the protection of the law of the land under the First, Fifth, and Fourteenth Amendments to the United States Constitution, and Sections 1, 12, 13, 14, and 19, of Article I of the North Carolina

Constitution. The State failed to establish a compelling

interest in abridging Mr. Daniels' constitutional rights, and

failed to show section 14-208.18 is narrowly tailored and the

least restrictive means to achieve its interests under the

statute.

VII. SECTION 14-208.18 IS UNCONSTITUTIONAL AS APPLIED.

Mr. Daniels incorporates and asserts his arguments in

Sections I, II, III, IV, V, and VI above. For the same reasons

argued above, section 14-208.18 is unconstitutionally overbroad

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and vague as applied to Mr. Daniels' conduct and interfered with

his fundamental rights to expression, association, freedom of

movement, and intrastate travel. Mr. Daniels visited with his

family and played softball with a community team at a public

park. His actions resulted in his arrest without probable cause

and prosecution. Exercising his rights to free speech, worship,

religion, and association at his chosen church could lead to

prosecution. Section 14-208.18 as applied to Mr. Daniels

violates the First, Fourth, Fifth, and Fourteenth Amendments to

the United States Constitution, and Sections 1, 12, 13, 14, and

19, of Article I of the North Carolina Constitution.11

CONCLUSION

Mr. Daniels presented evidence and arguments that "aptly

demonstrate" the invalidity of section 14-208.18. Treants, 83

N.C. App. at 356, 350 S.E.2d at 372. For the foregoing reasons,

Mr. Daniels asks this Court to uphold the trial court's ruling

that 14-208.18 is unconstitutional on its face and as applied.

Respectfully submitted this the 11th day of July, 2012.

ELECTRONICALLY SUBMITTEDGlenn GerdingAttorney for Defendant-Appellee210 N. Columbia St.Chapel Hill, NC 27514(919) 338-0836GGGerding@Hotmail.comNC Bar # 23124

11 Even if Mr. Daniels has not established that 14-208.18 is unconstitutional as applied, this Court may still consider his facial challenges. United States v. Stevens, 130 S. Ct. 1577, 1587, 176 L.Ed.2d 435, 447 n.3 (2010).

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CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellee's Brief and Appendix has been filed by uploading a copy of the same to the North Carolina Court of Appeals electronic filing website.

I hereby certify that on the date below, I served the State of North Carolina with the foregoing Brief and Appendix by e-mailing a copy of the same to, and with the consent of, Laura Parker, Assistant Attorney General, at lparker@ncdoj.gov.

This the 11th day of July, 2012.

ELECTRONICALLY SUBMITTEDGlenn GerdingAttorney for Defendant-Appellee210 N. Columbia St.Chapel Hill, NC 27514(919) 338-0836GGGerding@Hotmail.com

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