{ "id": 4342702, "name": "IN THE MATTER OF MITCHELL BORDEN", "name_abbreviation": "In re Borden", "decision_date": "2011-11-01", "docket_number": "No. COA11-306", "first_page": "579", "last_page": "584", "citations": [ { "type": "official", "cite": "216 N.C. App. 579" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "614 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633154 ], "year": 2005, "pin_cites": [ { "page": "483", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0479-01" ] }, { "cite": "643 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638286 ], "year": 2007, "pin_cites": [ { "page": "923", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0920-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(lb) and (7)" }, { "page": "(4)(b)" } ], "opinion_index": 0 }, { "cite": "359 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794414 ], "year": 2005, "pin_cites": [ { "page": "560", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0554-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2009, "opinion_index": 0 }, { "cite": "435 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531909, 2532009, 2529965, 2531285, 2530587 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0619-02", "/nc/334/0619-05", "/nc/334/0619-03", "/nc/334/0619-04", "/nc/334/0619-01" ] }, { "cite": "430 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526120 ], "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0607-01" ] }, { "cite": "677 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "450", "parenthetical": "quotations and quotation marks omitted" }, { "page": "450", "parenthetical": "stating \"[t]he registration program was designed to assist law enforcement agencies and the public in knowing the whereabouts of sex offenders and in locating them when necessary\"" }, { "page": "450" } ], "opinion_index": 0 }, { "cite": "363 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151610 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "330", "parenthetical": "quotations and quotation marks omitted" }, { "page": "330" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0322-01" ] }, { "cite": "361 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3737474 ], "year": 2007, "pin_cites": [ { "page": "292", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0287-01" ] }, { "cite": "703 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "689 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "513", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173701 ], "year": 2009, "pin_cites": [ { "page": "357", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0354-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-208", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 535, "char_count": 12303, "ocr_confidence": 0.749, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.36605937257345894 }, "sha256": "b8dfe9a33c0a30648b57ad937c41da2d47c5cf8912e2699627477f4aeb2c32c8", "simhash": "1:09adc2da52ae57f0", "word_count": 1930 }, "last_updated": "2023-07-14T18:13:27.459138+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and STROUD concur." ], "parties": [ "IN THE MATTER OF MITCHELL BORDEN" ], "opinions": [ { "text": "THIGPEN, Judge.\nThe State of North Carolina (\u201cthe State\u201d) appeals from an order terminating Mitchell Borden\u2019s (\u201cPetitioner\u201d) sex offender registration requirement pursuant to N.C. Gen. Stat. \u00a7 14-208.12A (2009). We must determine whether the term \u201cinitial county registration\u201d as provided in N.C. Gen. Stat. \u00a7 14-208.12A(a) means the date of initial county registration in North Carolina or in any jurisdiction. Because \u201cinitial county registration\u201d means the date of initial county registration in North Carolina, and Petitioner has not been registered as a sex offender in North Carolina for at least ten years, we reverse the trial court\u2019s order.\nPetitioner was convicted of \u201cRape 1\u201d or \u201cSexual Abuse 1st Degree\u201d in February 1995 in Fayette County, Kentucky. In 2010, Petitioner received a written notice from the Kentucky Sex Offender Registry stating, \u201cThe period of time for which you were required to register as a sex offender in the Commonwealth of Kentucky has expired. As of June 25, 2010 you are no longer required to register as a sex offender with the Kentucky Sex Offender Registry for the above referenced offense.\u201d Subsequently, on 14 September 2010, Petitioner filed a petition for termination of sex offender registration in Guilford County Superior Court. The petition lists Petitioner\u2019s date of initial county registration in North Carolina as 1 June 2009.\nOn 13 October 2010, the trial court heard Petitioner\u2019s petition for termination of sex offender registration. The trial court reviewed the letter from the Kentucky Sex Offender Registry removing Petitioner from the registry. The trial court also reviewed Petitioner\u2019s North Carolina criminal record and determined that \u201cit appears there were a couple of charges but they were dismissed.\u201d The trial court then stated, \u201cI think he would probably qualify to have his petition granted.\u201d In response, the prosecutor raised the following concern:\n[T]he only hitch I potentially see is the statute allows he can petition after 10 years from the date of initial county registration, which if he states he\u2019s only been living here for two years, his county registration here wouldn\u2019t be 10 years old. However, it would seem to me that the fact that he\u2019s off the registry in Kentucky, that would trump, but I\u2019m just highlighting what I see as the only potential flaw \u2014 or problem with the statute.\nThe trial court replied, \u201cI would read that to mean initial county registration in any jurisdiction^]\u201d The trial court then entered an order terminating Petitioner\u2019s sex offender registration requirement and finding, inter alia, that Petitioner \u201chas been subject to North Carolina registration requirements of Part 2 of Article 27A for at least ten (10) years beginning with the Date Of Initial NC Registration above. Kentucky registration 1995.\u201d The State appeals from this order.\nIn this case, we must determine whether the North Carolina General Assembly intended for \u201cthe date of initial county registration\u201d to mean the date of initial county registration in North Carolina or in any jurisdiction.\n\u201cResplution of issues involving statutory construction is ultimately a question of law for the courts. Where an appeal presents a question of statutory interpretation, full review is appropriate, and we review a trial court\u2019s conclusions of law de novo.\u201d State v. Davison, 201 N.C. App. 354, 357, 689 S.E.2d 510, 513 (2009) (citations and quotation marks omitted), disc. review denied, _ N.C. _, 703 S.E.2d 738 (2010).\nWe determine matters of statutory construction as follows:\nWhen the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required. However, when the language of a statute is ambiguous, this Court will determine the purpose of the statute and the intent of the legislature in its enactment. Moreover, when confronted with a clear and unambiguous statute, courts are without power to interpolate, or superimpose, provisions and limitations not contained therein.\nIn re R.L.C., 361 N.C. 287, 292, 643 S.E.2d 920, 923 (2007) (internal citations and quotation marks omitted). \u201cThe best indicia of the legislature\u2019s intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish. Moreover, in discerning the intent of the General Assembly, statutes in pari materia should be construed together and harmonized whenever possible.\u201d State v. Abshire, 363 N.C. 322, 330, 677 S.E.2d 444, 450 (2009) (quotations and quotation marks omitted). \u201cIn pari materia is defined as upon the same matter or subject.\u201d Durham Herald Co., Inc. v. North Carolina Low-Level Radioactive Waste Management Authority, 110 N.C. App. 607, 612, 430 S.E.2d 441, 445 (citations and quotation marks omitted), disc. review denied, 334 N.C. 619, 435 S.E.2d 334 (1993).\nThe purpose of the North Carolina Sex Offender and Public Protection Registration Program (\u201cRegistration Program\u201d) is outlined in N.C. Gen. Stat. \u00a7 14-208.5 (2009):\n[I]t is the purpose of this Article to assist law enforcement agencies\u2019 efforts to protect communities by requiring persons who are convicted of sex offenses or of certain other offenses committed against minors to register with law enforcement agencies, to require the exchange of relevant information about those offenders among law enforcement agencies, and to authorize the access to necessary and relevant information about those offenders to others as provided in this Article.\nSee also Abshire, 363 N.C. at 330, 677 S.E.2d at 450 (stating \u201c[t]he registration program was designed to assist law enforcement agencies and the public in knowing the whereabouts of sex offenders and in locating them when necessary\u201d). With the creation of this program, the legislature explicitly recognized that \u201csex offenders often pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is of paramount governmental interest.\u201d N.C. Gen. Stat. \u00a7 14-208.5. Furthermore, the legislature recognized that individuals who commit certain types of offenses against minors, \u201csuch as kidnapping, pose significant and unacceptable threats to the public safety and welfare of the children in this State and that the protection of those children is of great governmental interest.\u201d Id.\nThe Registration Program requires the following persons to register:\nA person who is a State resident and who has a reportable conviction shall be required to maintain registration with the sheriff of the county where the person resides. If the person moves to North Carolina from outside this State, the person shall register within three business days of establishing residence in this State, or whenever the person has been present in the State for 15 days, whichever comes first.\nN.C. Gen. Stat. \u00a7 14-208.7(a) (2009). \u201cRegistration shall be maintained for a period of at least 30 years following the date of initial comity registration unless the person, after 10 years of registration, successfully petitions the superior court to shorten his or her registration time period under G.S. 14-208.12A.\u201d Id. N.C. Gen. Stat. \u00a7 14-208.12A(a) states:\nTen years from the date of initial county registration, a person required to register under this Part may petition the superior court in the district where the person resides to terminate the 30-year registration requirement if the person has not been convicted of a subsequent offense requiring registration under this Article.\n(Emphasis added).\nConsidering the provisions of the Registration Program in pari materia, we conclude the legislature intended for \u201cinitial county registration\u201d to mean initial county registration in North Carolina. \u201c[T]he twin aims of the North Carolina Sex Offender and Public Protection Registration Program, [are] public safety and protection^]\u201d State v. Bryant, 359 N.C. 554, 560, 614 S.E.2d 479, 483 (2005) (citation omitted). Allowing registered offenders to be removed from the sex offender registry without being on the registry for at least ten years in North Carolina contradicts the intent of the statutes to protect the public, maintain public safety, and assist law enforcement agencies and the public in knowing the whereabouts of sex offenders. See id.; Abshire, 363 N.C. at 330, 677 S.E.2d at 450.\nAdditionally, construing \u201cinitial county registration\u201d to mean initial county registration in North Carolina is consistent with the definitions provided in the Registration Program. For instance, N.C. Gen. Stat. \u00a7 14-208.6 defines \u201ccounty registry\u201d as \u201cthe information compiled by the sheriff of a county in compliance with this Article\u201d and \u201csheriff\u2019 as \u201cthe sheriff of a county in this State.\u201d N.C. Gen. Stat. \u00a7 14-208.6(lb) and (7). These definitions demonstrate the legislature\u2019s intent to define \u201cinitial county registration\u201d as a sex offender\u2019s initial registration with a sheriff of a county in this State.\nIn this case, the trial court incorrectly interpreted \u201cinitial county registration\u201d to mean \u201cinitial county registration in any jurisdiction.\u201d While Petitioner had been registered as a sex offender in Kentucky for at least ten years, the record shows he was not registered in North Carolina for at least ten years. Thus, the trial court erred when it terminated Petitioner\u2019s sex offender registration requirement. Accordingly, we reverse the trial court\u2019s order.\nREVERSED.\nJudges GEER and STROUD concur.\n. Petitioner indicated on his petition for termination of sex offender registration that he was convicted of \u201cRape 1\u201d; however, the notice from the Kentucky Sex Offender Registry lists Petitioner\u2019s offense as \u201cSexual Abuse 1st Degree.\u201d\n. We note that the date Petitioner initially registered as a sex offender in North Carolina is not clear from the record. On his petition for termination of sex offender registration, Petitioner listed his \u201cDate of Original NC registration\u201d as 1 June 2009. Similarly, at the 13 October 2010 hearing before the trial court, when asked how long he had resided in North Carolina, Petitioner told the trial court, \u201cIt will be two years in June, sir.\u201d Conversely, the State\u2019s Motion to Stay Order states that \u201c[although [Petitioner\u2019s] petition indicates his date of initial county registration in North Carolina was June 1, 2009, information in the Clerk of Court\u2019s file, 10 CRS 24618, shows his date of initial county registration in North Carolina was actually March 1, 2002.\u201d\n. The definition of \u201creportable conviction\u201d includes \u201c[a] final conviction in another state of an offense, which if committed in this State, is substantially similar to an offense against a minor or a sexually violent offense as defined by this section, or a final conviction in another state of an offense that requires registration under the sex offender registration statutes of that state.\u201d N.C. Gen. Stat. \u00a7 14-208.6(4)(b) (2009). Here, Petitioner was convicted of \u201cRape 1\u201d or \u201cSexual Abuse 1st Degree\u201d in Kentucky in 1995 and was required to register as a sex offender in Kentucky; thus, Petitioner\u2019s 1995 Kentucky conviction is a reportable conviction under the North Carolina Registration Program.\n. Although it is not clear from the record when Petitioner initially registered in North Carolina, using the earliest date in the record, 1 March 2002, Petitioner has not been registered in North Carolina for at least ten years.", "type": "majority", "author": "THIGPEN, Judge." } ], "attorneys": [ "Roy Cooper, Attorney General, by Catherine F. Jordan, Assistant Attorney General, for the State.", "No brief filed for petitioner." ], "corrections": "", "head_matter": "IN THE MATTER OF MITCHELL BORDEN\nNo. COA11-306\n(Filed 1 November 2011)\nSexual Offenders \u2014 registration\u2014termination\nThe trial court erred when it terminated petitioner\u2019s sex offender registration requirement pursuant to N.C.G.S. \u00a7 14-208.12A where a Kentucky registration requirement for a Kentucky crime had expired but petitioner had not been registered in North Carolina for ten years. The North Carolina legislature intended to define \u201cinitial county registration\u201d to mean initial county registration in North Carolina.\nAppeal by the State from order entered 13 October 2010 by Judge John O. Craig, III, in Guilford County Superior Court. Heard in the Court of Appeals 15 September 2011.\nRoy Cooper, Attorney General, by Catherine F. Jordan, Assistant Attorney General, for the State.\nNo brief filed for petitioner." }, "file_name": "0579-01", "first_page_order": 589, "last_page_order": 594 }