{ "id": 12422805, "name": "STATE OF NORTH CAROLINA v. JAMES KEVIN MOIR", "name_abbreviation": "State v. Moir", "decision_date": "2016-12-21", "docket_number": "No. 49PA14", "first_page": "370", "last_page": "390", "citations": [ { "type": "official", "cite": "369 N.C. 370" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "753 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2014, "opinion_index": -1 }, { "cite": "231 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 6788921 ], "year": 2014, "opinion_index": -1, "case_paths": [ "/nc-app/231/0628-01" ] }, { "cite": "195 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12598042 ], "weight": 3, "year": 2016, "pin_cites": [ { "page": "616-18" }, { "page": "610", "parenthetical": "defining \"elements\" as \"the 'constituent parts' of a crime's legal definition-the things the 'prosecution must prove to sustain a conviction' \" (quoting Black's Law Dictionary 634 (10th ed. 2014)" } ], "opinion_index": 0, "case_paths": [ "/s-ct/136/2243-01" ] }, { "cite": "616 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633458 ], "year": 2005, "pin_cites": [ { "page": "19-20", "parenthetical": "holding that a single act cannot support two convictions under both N.C.G.S. \u00a7 14-202.1(a)(l) and N.C.G.S. \u00a7 14-202.1(a) (2), respectively" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0015-01" ] }, { "cite": "651 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639547, 12639548, 12639549, 12639550 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/651/0227-01", "/se2d/651/0227-02", "/se2d/651/0227-03", "/se2d/651/0227-04" ] }, { "cite": "192 L. Ed. 2d 941", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12591911, 12591912, 12591913, 12591915, 12591916, 12591917, 12591918, 12591919 ], "weight": 2, "year": 2015, "opinion_index": 0, "case_paths": [ "/s-ct/135/2910-03", "/s-ct/135/2910-04", "/s-ct/135/2910-05", "/s-ct/135/2911-01", "/s-ct/135/2911-02", "/s-ct/135/2911-03", "/s-ct/135/2911-04", "/s-ct/135/2911-05" ] }, { "cite": "186 L. Ed. 2d 438", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12698469 ], "weight": 14, "year": 2013, "pin_cites": [ { "page": "449, 451-53", "parenthetical": "explaining that the \"modified categorical approach\" is solely a \"variant\" of the \"categorical approach\"" }, { "page": "449" }, { "page": "451", "parenthetical": "stating that \"[t]he key, we emphasize[ ], is elements, not facts.\"" }, { "page": "456" }, { "page": "456" }, { "page": "449" }, { "page": "453" }, { "page": "449" }, { "page": "462" }, { "page": "453-54" }, { "page": "449" }, { "page": "457", "parenthetical": "noting that the use of the \"circumstance-specific approach\" would require trial courts \"to expend resources examining (often aged" } ], "opinion_index": 0, "case_paths": [ "/us/570/0254-01" ] }, { "cite": "3 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "215 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631990 ], "year": 1939, "pin_cites": [ { "page": "754" } ], "opinion_index": 0, "case_paths": [ "/nc/215/0752-01" ] }, { "cite": "194 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "8", "parenthetical": "brackets in original" } ], "opinion_index": 0 }, { "cite": "282 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568004 ], "year": 1973, "pin_cites": [ { "page": "620", "parenthetical": "brackets in original" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0610-01" ] }, { "cite": "578 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "648", "parenthetical": "stating that \"[i]t is not necessary that an actual touching of the victim by defendant occur in order for the defendant to be 'with' a child for purposes of taking indecent liberties under [N.C.G.S.] \u00a7 14-202.1(a)(1)\" (citation omitted)" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185720 ], "year": 2003, "pin_cites": [ { "page": "207", "parenthetical": "stating that \"[i]t is not necessary that an actual touching of the victim by defendant occur in order for the defendant to be 'with' a child for purposes of taking indecent liberties under [N.C.G.S.] \u00a7 14-202.1(a)(1)\" (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0200-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "180" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "660 F.3d 771", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3843142 ], "weight": 2, "year": 2011, "pin_cites": [ { "page": "782-83", "parenthetical": "King, J., concurring, with Motz, Gregory, & Davis, JJ." }, { "page": "773-76", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/f3d/660/0771-01" ] }, { "cite": "172 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8319854 ], "year": 2005, "pin_cites": [ { "page": "314-16", "parenthetical": "holding that a single act cannot support two convictions under both N.C.G.S. \u00a7 14-202.1(a)(l) and N.C.G.S. \u00a7 14-202.1(a) (2), respectively" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0308-01" ] }, { "cite": "278 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "575", "parenthetical": "concluding that masturbating in a child's presence constituted an offense pursuant to N.C.G.S. \u00a7 14-202.1(a)(l)" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170318 ], "year": 1981, "pin_cites": [ { "page": "377", "parenthetical": "concluding that masturbating in a child's presence constituted an offense pursuant to N.C.G.S. \u00a7 14-202.1(a)(l)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0376-01" ] }, { "cite": "361 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739006, 3735620, 3740841, 3742705, 3740563, 3737526, 3741209, 3736734 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0572-02", "/nc/361/0572-04", "/nc/361/0572-03", "/nc/361/0572-06", "/nc/361/0572-08", "/nc/361/0572-07", "/nc/361/0572-05", "/nc/361/0572-01" ] }, { "cite": "642 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "459" }, { "page": "459" } ], "opinion_index": 0 }, { "cite": "182 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8171827 ], "weight": 2, "pin_cites": [ { "page": "323" }, { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0316-01" ] }, { "cite": "370 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "407", "parenthetical": "concluding that the act of inserting an adult's tongue into a child's mouth constituted an \"immoral, improper, or indecent\" act within the meaning of N.C.G.S. \u00a7 14-202.1(a)(1) and a \"lewd or lascivious\" act within the meaning of N.C.G.S. \u00a7 14-202.1(a)(2)" } ], "opinion_index": 0 }, { "cite": "322 N.C. 753", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518221 ], "year": 1988, "pin_cites": [ { "page": "767", "parenthetical": "concluding that the act of inserting an adult's tongue into a child's mouth constituted an \"immoral, improper, or indecent\" act within the meaning of N.C.G.S. \u00a7 14-202.1(a)(1) and a \"lewd or lascivious\" act within the meaning of N.C.G.S. \u00a7 14-202.1(a)(2)" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0753-01" ] }, { "cite": "364 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568736, 2568035, 2572809, 2568493, 2566670 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0479-04", "/nc/321/0479-01", "/nc/321/0479-03", "/nc/321/0479-05", "/nc/321/0479-02" ] }, { "cite": "361 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "106-07" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 399", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358450 ], "year": 1987, "pin_cites": [ { "page": "400-01" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0399-01" ] }, { "cite": "1975 N.C. Sess. Laws 1105", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "73 Fed. Reg. 38030", "category": "reporters:federal", "reporter": "Fed. Reg.", "year": 2008, "pin_cites": [ { "page": "38053" } ], "opinion_index": 0 }, { "cite": "178 L. Ed. 2d 287", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12437839, 12437840, 12437841, 12437842, 12437843, 12437844, 12437845, 12437846 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/l-ed-2d/178/0287-01", "/l-ed-2d/178/0287-02", "/l-ed-2d/178/0287-03", "/l-ed-2d/178/0287-04", "/l-ed-2d/178/0287-05", "/l-ed-2d/178/0287-06", "/l-ed-2d/178/0287-07", "/l-ed-2d/178/0287-08" ] }, { "cite": "562 U.S. 961", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5983363, 4126600, 5970580, 5940639, 5910699, 6011843, 5968201, 6022220, 12437837, 6012878, 5962319, 12437839, 12437841, 12437836, 12437843, 12437842, 12437838, 12437840, 12437844, 12437845, 12437849, 12437846, 5977563, 12437847, 12437848, 5909992, 5954414, 6028159 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/us/562/0961-04", "/us/562/0961-08", "/us/562/0961-07", "/us/562/0961-11", "/us/562/0961-14", "/us/562/0961-05", "/us/562/0961-03", "/us/562/0961-13", "/l-ed-2d/178/0286-06", "/us/562/0961-06", "/us/562/0961-12", "/l-ed-2d/178/0287-01", "/l-ed-2d/178/0287-03", "/l-ed-2d/178/0286-05", "/l-ed-2d/178/0287-05", "/l-ed-2d/178/0287-04", "/l-ed-2d/178/0286-07", "/l-ed-2d/178/0287-02", "/l-ed-2d/178/0287-06", "/l-ed-2d/178/0287-07", "/l-ed-2d/178/0288-03", "/l-ed-2d/178/0287-08", "/us/562/0961-09", "/l-ed-2d/178/0288-01", "/l-ed-2d/178/0288-02", "/us/562/0961-10", "/us/562/0961-02", "/us/562/0961-01" ] }, { "cite": "597 F.3d 1347", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4219694 ], "weight": 2, "pin_cites": [ { "page": "1353-56" }, { "page": "1356", "parenthetical": "\"hold[ing] that courts may employ a noncategorical approach to examine the underlying facts of a defendant's offense, to determine whether a defendant has committed a 'specified offense against a minor' and is thus a 'sex offender' subject to SORNA's registration requirement\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/597/1347-01" ] }, { "cite": "18 U.S.C. \u00a7\u00a7 1591", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "544 U.S. 13", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5879404 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "26" }, { "page": "214" }, { "page": "25-26" }, { "page": "217", "parenthetical": "plurality opinion" } ], "opinion_index": 0, "case_paths": [ "/us/544/0013-01" ] }, { "cite": "728 F.3d 347", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3696606 ], "weight": 2, "year": 2013, "pin_cites": [ { "page": "352" }, { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/f3d/728/0347-01" ] }, { "cite": "736 F.3d 357", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3726675 ], "weight": 2, "year": 2013, "pin_cites": [ { "page": "365", "parenthetical": "quoting United States v. Cabrera-Umanzor, 728 F.3d 347, 352 (4th Cir. 2013)" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/f3d/736/0357-01" ] }, { "cite": "557 U.S. 29", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3658219 ], "weight": 12, "year": 2009, "pin_cites": [ { "page": "34" }, { "page": "27" }, { "page": "34" }, { "page": "27" }, { "page": "34" }, { "page": "27" }, { "page": "41" }, { "page": "32" }, { "page": "34-35" }, { "page": "27-28" }, { "page": "36-38" }, { "page": "28-30", "parenthetical": "explaining that the references in the Armed Career Criminal Act to specific federal crimes support use of the \"categorical approach\"" } ], "opinion_index": 0, "case_paths": [ "/us/557/0029-01" ] }, { "cite": "549 U.S. 183", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3553841 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "193" }, { "page": "692-93" }, { "page": "193" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/549/0183-01" ] }, { "cite": "495 U.S. 575", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 634101 ], "weight": 8, "year": 1990, "pin_cites": [ { "page": "602" }, { "page": "629" }, { "page": "602" }, { "page": "629" }, { "page": "601-02" }, { "page": "628-29" }, { "page": "600-02" }, { "page": "628-29" } ], "opinion_index": 0, "case_paths": [ "/us/495/0575-01" ] }, { "cite": "777 F.3d 700", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3986916 ], "weight": 8, "pin_cites": [ { "page": "704-05" }, { "page": "704" }, { "page": "704" }, { "page": "705" }, { "page": "704" }, { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/f3d/777/0700-01" ] }, { "cite": "814 F.3d 192", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4144601 ], "weight": 6, "year": 2016, "pin_cites": [ { "page": "195-96" }, { "page": "196" }, { "page": "197" }, { "page": "200" }, { "page": "197", "parenthetical": "stating that \"the language of Section 16911(3)(A), like the language of Section 16911(4)(A" } ], "opinion_index": 0, "case_paths": [ "/f3d/814/0192-01" ] }, { "cite": "782 F.3d 1118", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 6054146 ], "weight": 8, "year": 2015, "pin_cites": [ { "page": "1130", "parenthetical": "stating that \"courts employ two main approaches, . . . the categorical approach and the circumstance-specific approach\"" }, { "page": "1130" }, { "page": "1130-31" }, { "page": "1132" }, { "page": "1135", "parenthetical": "concluding that \"Congress intended courts to apply a categorical approach to sex offender tier classifications designated by reference to a specific criminal statute\"" }, { "page": "1136" } ], "opinion_index": 0, "case_paths": [ "/f3d/782/1118-01" ] }, { "cite": "18 U.S.C. \u00a7\u00a7 2241", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 16911.42", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 16915", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 8, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "120 Stat. 590", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 }, { "cite": "743 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 }, { "cite": "366 N.C. 600", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4356742, 4351145, 4355465, 4347983, 4351984, 4349714, 4351931, 4359391 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/nc/366/0600-06", "/nc/366/0600-01", "/nc/366/0600-02", "/nc/366/0600-08", "/nc/366/0600-04", "/nc/366/0600-05", "/nc/366/0600-07", "/nc/366/0600-03" ] }, { "cite": "741 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "896" } ], "opinion_index": 0 }, { "cite": "226 N.C. 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JAMES KEVIN MOIR" ], "opinions": [ { "text": "ERVIN, Justice.\nIn this case, we consider whether the Court of Appeals erred by vacating and remanding the trial court\u2019s order denying a petition filed by defendant James Kevin Moir seeking termination of the requirement that he register as a sex offender on the grounds that the trial court had erroneously determined that defendant was not eligible to have his registration terminated in light of certain provisions of federal law. After careful consideration of the State\u2019s challenges to the Court of Appeals\u2019 decision, we conclude that the Court of Appeals\u2019 decision should be modified and affirmed and that this case should be remanded to the Court of Appeals for further remand to the trial court for additional proceedings not inconsistent with this opinion.\nOn 9 January 2001, the Catawba County grand jury returned bills of indictment charging defendant with having committed two counts of first-degree statutory sexual offense and two counts of taking indecent liberties with a child. On 28 November 2001, defendant entered a plea of guilty to two counts of taking indecent liberties with a child. Based upon defendant\u2019s guilty plea, Judge James W. Morgan consolidated defendant\u2019s convictions for judgment and entered a judgment sentencing defendant to a term of sixteen to twenty months of imprisonment, with that sentence being suspended and with defendant being placed on supervised probation for five years on the condition that defendant serve an active sentence of one hundred ten days imprisonment, pay the costs, comply with the usual terms and conditions of probation and the special terms and conditions of probation applicable to sex offenders, and have no contact with the victim except to the extent that such contact is allowed by the victim\u2019s mother. In the course of entering judgment, Judge Morgan ordered defendant to \u201c[i]mmediately register\u201d as a sex offender as required by N.C.G.S. \u00a7 14-208.7, a mandate with which defendant complied on 15 March 2002. After defendant received an extension of the probationary period in October 2006 for the purpose of allowing defendant to complete the sex offender treatment program, Judge Timothy S. Kincaid entered an order on 25 June 2007 terminating defendant\u2019s probation. On 22 May 2012, defendant filed a petition pursuant to N.C.G.S. \u00a7 14-208.12A seeking to have the requirement that he register as a sex offender pursuant to Part 2 of Article 27A of Chapter 14 of the North Carolina General Statutes terminated on the grounds that he had \u201cbeen subject to the North Carolina registration requirements ... for at least ten (10) years beginning with the\u201d date of initial registration; that he had \u201cnot been convicted of any subsequent offense requiring registration\u201d since the date of his conviction; that he had \u201cnot been arrested for any offense that would require registration\u201d since the completion of his sentence; and that proper notice of his request for relief from his sex offender registration requirement had been provided to the appropriate entities.\nDefendant\u2019s petition came on for hearing before the trial court at the 11 February 2013 criminal session of the Superior Court, Catawba County. On 18 February 2013, the trial court entered an order denying defendant\u2019s petition. In its order, the trial court found as fact that:\n1. On November 28, 2001, the defendant entered pleas of guilty to two counts of taking indecent liberties with a minor child as part of a plea agreement.\n2. Prior to the court\u2019s sentencing of the defendant, the State gave a statement of facts in support of the plea during which it was stated that the defendant had engaged in improper touching of the defendant\u2019s daughter, a child of the age of 4 years, and that he had masturbated in the presence of the child.\n3. The State\u2019s statement of facts indicated that the improper touching had occurred in the vaginal area of the child.\n4. The defendant was required to register as a sex offender under Part 2 of Article 27A of Chapter 14 of the General Statutes as a result of his guilty pleas.\n5. The defendant has been subject to the North Carolina registration requirements of Part 2 of Article 27A for at least 10 years beginning with the date of the initial North Carolina registration.\n6. Since the date of conviction, the defendant has not been convicted of any subsequent offenses requiring registration under Article 27A, Chapter 14.\n7. Since the completion of his sentence for the indecent liberties offenses, the defendant has not been arrested for any offense that would require registration under Article 27A, Chapter 14.\n8. The defendant served his petition on the Office of the District Attorney for Catawba County at least three weeks prior to the hearing held in this matter.\n9. The risk of the defendant re-offending is low.\n10. The defendant is not a current or potential threat to public safety.\n11. Touching of the genital area of a minor with the intent to gratify sexual desire is considered \u201csexual contact\u201d under the provisions of 18 U.S.C. \u00a7 2246(3), and sexual contact is classified as \u201cabusive sexual contact\u201d under 18 U.S.C. \u00a7 2244.\n12. Abusive sexual contact is considered to be a Tier II offense under the provisions of 42 U.S.C. \u00a7 16911(3)(A)(iv).\n13. The registration for Tier II offenses under the provisions of the Jacob Wetterling Act, 42 U.S.C. \u00a7 14071, and the provisions of the Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. \u00a7 16911, et seq., is 25 years. This registration period cannot be reduced.\n14. The defendant has not been registered as a sex offender for at least 25 years.\nBased upon these findings of fact, the trial court concluded as a matter of law:\n1. That the termination of defendant\u2019s obligation to register as a sex offender would not comply with the current provisions of the Adam Walsh Child Protection and Safety Act of 2006, which are applicable to the termination of a registration requirement and are required to be met as for the receipt of federal funding by the State of North Carolina.\n2. [That t]he defendant is not entitled to termination of the registration requirement.\nAs a result, the trial court determined that defendant\u2019s \u201crequest to terminate the sex offender registration is denied\u201d and that \u201cdefendant shall continue to maintain a current registration under Part 2 of Article 27A of Chapter 14.\u201d Defendant noted an appeal to the Court of Appeals from the trial court\u2019s order.\nOn 7 January 2014, the Court of Appeals filed an opinion vacating the trial court\u2019s order and remanding this case to the Superior Court, Catawba County, for further proceedings on the grounds that the trial court had erred by determining that defendant was a Tier II sex offender who was ineligible to obtain relief from the sex offender registration requirement. State v. Moir, 231 N.C. App. 628, 631-32, 753 S.E.2d 195, 196-97 (2014). According to the Court of Appeals, the trial court reached this erroneous conclusion based upon an incorrect understanding of the relevant provisions of federal law. Id. at 631, 753 S.E.2d at 197. In the Court of Appeals\u2019 view, the extent to which an individual should be classified as a Tier I, Tier II, or Tier III offender hinges upon the nature of \u201cthe offense charged\u201d rather than upon \u201cthe facts underlying the case,\u201d as the trial court appeared to believe. Id. at 631, 753 S.E.2d at 197. As a result, because the crime of taking indecent liberties with a child did not inherently involve the type of conduct required to make defendant a Tier II offender, the Court of Appeals concluded that defendant should be treated as a Tier I, rather than a Tier II, offender. Id. at 631-32, 753 S.E.2d at 197 (citing In re Hamilton, 220 N.C. App. 350, 358, 725 S.E.2d 393, 399 (2012), and In re McClain, 226 N.C. App. 465, 469, 741 S.E.2d 893, 896, disc. rev. denied, 366 N.C. 600, 743 S.E.2d 188 (2013)). However, because \u201cthe ultimate decision of whether to terminate a sex offender\u2019s registration requirement still lies in the trial court\u2019s discretion,\u201d id. at 362, 753 S.E.2d at 197 (quoting In re Hamilton, 220 N.C. App. at 359, 725 S.E.2d at 399 (citing N.C.G.S. \u00a7 14-208.12A(al) (2012))), the Court of Appeals vacated the trial court\u2019s order and remanded this case to the trial court for the entry of a new order containing appropriate findings of fact and conclusions of law based upon a correct understanding of the applicable law and, in the event that the trial court determined that defendant was eligible to be relieved from his existing obligation to comply with the sex offender registration program, the making of a discretionary decision concerning the extent to which defendant\u2019s petition should be allowed or denied, id. at 632, 753 S.E.2d at 197. We granted the State\u2019s request for discretionary review on 19 August 2014.\nSection 14 208.12A of our General Statutes, which governs requests for relief from the sex offender registration requirement, provides in pertinent part that:\n(a) Ten years from the date of initial county registration, a person required to register under this Part may petition the superior court to terminate the 30 year registration requirement if the person has not been convicted of a subsequent offense requiring registration under this Article.\nIf the reportable conviction is for an offense that occurred in North Carolina, the petition shall be filed in the district where the person was convicted of the offense.\n(al) The court may grant the relief if:\n(1) The petitioner demonstrates to the court that he or she has not been arrested for any crime that would require registration under this Article since completing the sentence,\n(2) The requested relief complies with the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State, and\n(3) The court is otherwise satisfied that the petitioner is not a current or potential threat to public safety.\nN.C.G.S. \u00a7 14-208.12A (2015). As a result, given that the trial court\u2019s findings of fact, which have not been challenged on appeal, establish that defendant \u201chas not been arrested for any offense that would require registration\u201d since completing his sentence and \u201cis not a current or potential threat to public safety,\u201d the extent to which defendant is eligible to be removed from the sex offender registration program depends upon whether \u201c[t]he requested relief complies with the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.\u201d Id. \u00a7 14-208.12A(al)(2).\nThe currently effective federal statutory provisions governing the extent to which an individual required to register as a sex offender is entitled to have his or her registration obligation terminated are found in the Sex Offender Registration and Notification Act (SORNA), which is also known as the Adam Walsh Act. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, Title I, \u00a7\u00a7 102, 113, 120 Stat. 590, 593-94. According to SORNA, sex offenders subject to a registration requirement are classified on the basis of three tier levels, see 42 U.S.C. \u00a7 16911(2)-(4) (2012), with sex offenders being treated differently based upon the exact tier to which they are assigned, see id. \u00a7 16915. Among other things, 42 U.S.C. \u00a7 16915 provides that \u201c[a] sex offender shall keep the registration current for the full registration period (excluding any time the sex offender is in custody or civilly committed) unless the offender is allowed a reduction under\u201d 42 U.S.C. \u00a7 16915(b), with \u201c[t]he full registration period\u201d being \u201c15 years, if the offender is a tier I sex offender,\u201d \u201c25 years, if the offender is a tier II sex offender,\u201d and \u201cthe life of the offender, if the offender is a tier III sex offender.\u201d Id. \u00a7 16915(a). However, a Tier I sex offender may have his or her required registration period reduced to ten years, id. \u00a7 16915(b)(3)(A), and a Tier III offender may have his or her required registration period reduced to twenty-five years, id. \u00a7 16915(b)(3)(B), in the event that he or she is not \u201cconvicted of any offense for which imprisonment for more than 1 year may be imposed,\u201d is not \u201cconvicted of any sex offense,\u201d \u201csuccessfully complete[s ]any periods of supervised release, probation, and parole,\u201d and \u201csuccessfully complete [s]... an appropriate sex offender treatment program,\u201d id. \u00a7 16915(b). As a result, defendant would not have been eligible to have his obligation to register as a sex offender terminated at the conclusion of a ten year registration period unless he satisfied the requirements for being a Tier I offender.\nThe exact contours of the tier system upon which 42 U.S.C. \u00a7 16915 depends are spelled out in 42 U.S.C. \u00a7 16911.42 U.S.C. \u00a7 16911(1) defines a \u201csex offender\u201d as \u201can individual who was convicted of a sex offense.\u201d Id. \u00a7 16911(1). According to 42 U.S.C. \u00a7 16911(2), a Tier I sex offender is \u201ca sex offender other than a [T]ier II or [Tjier III sex offender.\u201d Id. \u00a7 16911(2). A Tier II sex offender is\na sex offender other than a [Tjier III sex offender whose offense is punishable by imprisonment for more than 1 year and\u2014\n(A) is comparable to or more severe than the following offenses, when committed against a minor, or an attempt or conspiracy to commit such an offense against a minor:\n(i) sex trafficking (as described in section 1591 of title 18);\n(ii) coercion and enticement (as described in section 2422(b) of title 18);\n(iii) transportation with intent to engage in criminal sexual activity (as described in section 2423(a) [ ] of title 18[)];\n(iv) abusive sexual contact (as described in section 2244 of title 18);\n(B) involves\u2014\n(i) use of a minor in a sexual performance;\n(ii) solicitation of a minor to practice prostitution; or\n(iii) production or distribution of child pornography; or\n(C) occurs after the offender becomes a [T]ier I sex offender.\nId. \u00a7 16911(3). Finally, a Tier III sex offender is\na sex offender whose offense is punishable by imprisonment for more than 1 year and\u2014\n(A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense:\n(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of title 18); or\n(ii) abusive sexual contact (as described in section 2244 of title 18) against a minor who has not attained the age of 13 years;\n(B) involves kidnapping of a minor (unless committed by a parent or guardian); or\n(C) occurs after the offender becomes a [T]ier II sex offender.\nId. \u00a7 16911(4). As a result of the fact that the State seeks to have defendant categorized as a Tier II offender on the grounds that his \u201coffense\u201d was \u201ccomparable to or more severe than\u201d \u201cabusive sexual contact\u201d as defined in 18 U.S.C. \u00a7 2244, the extent to which defendant is or is not eligible to have his obligation to register as a sex offender terminated depends upon the extent, if any, to which his convictions for taking indecent liberties with a child in violation of N.C.G.S. \u00a7 14-202.1 are comparable to or more severe than convictions for \u201cabusive sexual contact\u201d in violation of 18 U.S.C. \u00a7 2244.\nAccording to N.C.G.S. \u00a7 14-202.1,\n(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:\n(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or\n(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.\nN.C.G.S. \u00a7 14-202.1(a) (2015). On the other hand, a defendant is guilty of abusive sexual contact in violation of 18 U.S.C. \u00a7 2244 if he or she \u201cknowingly engages in or causes sexual contact with or by another person, if so to do would violate\u201d 18 U.S.C. \u00a7\u00a7 2241(a) or (b), 2242, 2243(a) or (b), or 2241(c), or if he or she \u201cknowingly engages in sexual contact with another person without that other person\u2019s permission,\u201d 18 U.S.C. \u00a7 2244(a)-(b) (2012), with \u201csexual contact\u201d for purposes of 18 U.S.C. \u00a7 2244 defined as \u201cthe intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person,\u201d id. \u00a7 2246(3). The extent to which the crime of taking indecent liberties with a child is comparable to or more severe than the crime of abusive sexual contact for purposes of 42 U.S.C. \u00a7 16911(3)(A)(iv) is, of course, a question of federal, rather than state, law.\nThe federal courts have described three approaches for making determinations like ascertaining the tier to which a defendant should be assigned for the purpose of determining whether he is eligible to have his sex offender registration obligation reduced pursuant to 42 U.S.C. \u00a7 16915(b): (1) the \u201ccategorical approach,\u201d (2) the \u201ccircumstance-specific approach,\u201d and (3) the \u201cmodified categorical, approach.\u201d United States v. White, 782 F.3d 1118, 1130 (10th Cir. 2015) (stating that \u201ccourts employ two main approaches, . . . the categorical approach and the circumstance-specific approach\u201d); see Descamps v. United States, _ U.S. _, _, _, 186 L. Ed. 2d 438, 449, 451-53 (2013) (explaining that the \u201cmodified categorical approach\u201d is solely a \u201cvariant\u201d of the \u201ccategorical approach\u201d); see also United States v. Berry, 814 F.3d 192, 195-96 (4th Cir. 2016); United States v. Price, 777 F.3d 700, 704-05 (4th Cir.), cert. denied, _ U.S. _, 192 L. Ed. 2d 941 (2015). The applicability of each approach depends upon whether the statute under which a defendant was convicted refers to a \u201cgeneric crime\u201d or to a \u201cdefendant\u2019s specific conduct.\u201d White, 782 F.3d at 1130. In the event that Congress intended for the relevant statutory provision to refer to a generic crime rather than a defendant\u2019s specific conduct, the \u201ccategorical approach,\u201d in which courts compare the elements of the offense for which the defendant was convicted with the \u201celements of the generic offense identified in the federal statute,\u201d is used in making the necessary comparison. Price, 777 F.3d at 704; see White, 782 F.3d at 1130-31; see also Taylor v. United States, 495 U.S. 575, 602, 109 L. Ed. 2d 607, 629 (1990). A defendant\u2019s state conviction is comparable to the relevant federal offense for purposes of the \u201ccategorical approach\u201d when the elements composing the statute of conviction \u201care the same as, or narrower than, those of the generic offense.\u201d Descamps, _ U.S. at _, 186 L. Ed. 2d at 449; Price, 777 F.3d at 704 (citing Taylor, 495 U.S. at 602, 109 L. Ed. 2d at 629). Accordingly, if a state statute \u201csweeps more broadly than the generic crime,\u201d there is no categorical match. Descamps, _ U.S. at _, 186 L. Ed. 2d at 451 (stating that \u201c[t]he key, we emphasize[ ], is elements, not facts.\u201d) In other words, if there is \u201c \u2018a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition of a crime,\u2019 there is no categorical match and the prior conviction cannot be for an offense under the federal statute.\u201d Price, 777 F.3d at 704 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 166 L. Ed. 2d 683, 692-93 (2007)).\nOn the other hand, in the event that Congress intended to refer to a defendant\u2019s specific conduct instead of to the elements of the offense involved in the underlying criminal conviction, courts apply the \u201ccircumstance-specific approach.\u201d Id. at 705 (citing Nijhawan v. Holder, 557 U.S. 29, 34, 174 L. Ed. 2d 22, 27 (2009)). In applying the \u201ccircumstance-specific approach,\u201d the court is required to compare the actual conduct that led to the defendant\u2019s conviction for the relevant state offense with the elements .of the offenses as defined in federal law. Id.; see Descamps, _ U.S. at _, 186 L. Ed. 2d at 456. In other words, when the facts underlying the defendant\u2019s prior conviction would support a conviction under the federal statute, the defendant\u2019s prior offense is comparable to the federal offense for categorization purposes. Price, 777 F.3d at 705 (citing Nijhawan, 557 U.S. at 34, 174 L. Ed. 2d at 27); see Descamps, _ U.S. at _, 186 L. Ed. 2d at 456. Thus, the \u201cbroader framework\u201d made possible through the use of the \u201ccircumstance-specific approach\u201d is available \u201cwhen the federal statute refers \u2018to the specific way in which an offender committed the crime on a specific occasion,\u2019 rather than to the generic crime.\u201d Price, 777 F.3d at 705 (quoting Nijhawan, 557 U.S. at 34, 174 L. Ed. 2d at 27).\nIn the event that the court is required to address issues arising under a divisible statute, which exists when the relevant provision sets out multiple offenses rather than a single offense, a pure categorical approach cannot be utilized in any meaningful way. See Descamps, _ U.S. at _, 186 L. Ed. 2d at 449 (noting that the \u201cmodified categorical approach\u201d applies \u201cwhen a prior conviction is for violating a so-called \u2018divisible statute\u2019 In order to resolve cases involving divisible statutes, courts have developed the \u201cmodified categorical approach.\u201d Under that approach, \u201c[g]eneral divisibility, however, is not enough\u201d to permit a finding of comparability. United States v. Montes-Flores, 736 F.3d 357, 365 (4th Cir. 2013) (quoting United States v. Cabrera-Umanzor, 728 F.3d 347, 352 (4th Cir. 2013)). Instead, the \u201cmodified categorical approach\u201d only permits a finding of comparability in the event that the elements of at least one of the alternative offenses set out in the statute defining the offense of which the defendant was previously convicted categorically match the generic federal offense. Descamps, _ U.S. at _, 186 L. Ed. 2d at 453 (stating that \u201c[a]ll the modified [categorical] approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates \u2018several different . . . crimes\u2019 \u201d on the theory that, \u201c[i]f at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of\u2019 having committed) (ellipsis in original) (quoting Nijhawan, 557 U.S. at 41, 174 L. Ed. 2d at 32). In using the \u201cmodified categorical approach,\u201d the court is permitted to examine a limited number of contemporaneously generated documents described in Shepard v. United States, 544 U.S. 13, 26, 161 L. Ed. 2d 205, 214 (2005), \u201csuch as the indictment, the plea agreement, and jury instructions, to \u2018determine which alternative formed the basis of the defendant\u2019s prior conviction.\u2019 \u201d Berry, 814 F.3d at 196 (quoting Descamps, _ U.S. at _, 186 L. Ed. 2d at 449). \u201cThe modified [categorical] approach does not authorize a . . . court to substitute such a facts-based inquiry for an elements-based one.\u201d Descamps, _ U.S. at _, 186 L. Ed. 2d at 462. Instead, the only reason that a court is allowed to consider certain extra-statutory information in the \u201cmodified categorical approach\u201d is \u201cto assess whether the plea was to the version of the crime\u201d in the state statute that \u201ccorrespond[s] to the generic offense.\u201d Id. at _, 186 L. Ed. 2d at 452 (citing Shepard, 544 U.S. at 25-26, 161 L. Ed. 2d at 217 (plurality opinion)). If none of the alternative offenses set out in a \u201cdivisible\u201d statute is determined to be comparable to the generic offense on the basis of a \u201ccategorical\u201d analysis, no \u201cmatch[ ]\u201d exists and \u201c[t]he modified [categorical] approach... has no role to play\u201d in the analysis. Id. at _, 186 L. Ed. 2d at 453-54; accord Montes-Flores, 736 F.3d at 365 (stating that \u201c[g]eneral divisibility, however, is not enough; a statute is divisible for purposes of applying the modified categorical approach only if at least one of the categories into which the statute may be divided constitutes, by its elements, [the generic offense]\u201d (quoting Cabrera-Umanzor, 728 F.3d at 352)). Thus, \u201c[o]nce the elements of the offense of conviction have been identified, the examination of any Shepard documents ends, and the court proceeds with employing the categorical approach, comparing the elements of the offense of conviction with the elements of the offense identified in the federal statute.\u201d Berry, 814 F.3d at 196 (citing Descamps, _ U.S. at _, 186 L. Ed. 2d at 449). As a result, we must now determine whether 42 U.S.C. \u00a7 16911, when properly construed, requires use of the \u201ccategorical approach,\u201d the \u201ccircumstanc\u00e9-specific approach,\u201d or the \u201cmodified-categorical approach.\u201d\nAlthough the United States Supreme Court has pointed out that the word \u201coffense\u201d in statutes can refer to either a generic offense or specific conduct, Nijhawan, 557 U.S. at 34-35, 174 L. Ed. 2d at 27-28, an analysis of the language in which 42 U.S.C. \u00a7 16911(3)(A)(iv) is couched and various equitable and practical considerations persuade us that Congress intended for the required comparability analysis to focus on a generic offense rather than the defendant\u2019s individual conduct. As an initial matter, when taken in context, the references to \u201coffense\u201d contained throughout 42 U.S.C. \u00a7 16911 tend, for the most part, to refer to specific criminal offenses as defined in state law rather than to the specific conduct in which the defendant engaged. For example, as the Court of Appeals noted, the fact that a \u201csex offender\u201d is defined as \u201can individual who was convicted of a sex offense,\u201d 42 U.S.C. \u00a7 16911(1), the fact that a Tier II offender is defined as a \u201csex offender whose offense is punishable by imprisonment for more than 1 year,\u201d Moir, 231 N.C. App. at 630, 753 S.E.2d at 196 (quoting 42 U.S.C. \u00a7 16911(3) (2006)), and the fact that the statute contains \u201cfists of elements of the offense\u201d tend to suggest that Congress was referring to the identity of the generic offense for which a defendant was convicted rather than to a description of each individual defendant\u2019s conduct, id. at 631, 753 S.E.2d at 197. In addition, we note that 42 U.S.C. \u00a7 16911(3)(A) refers to offenses described in 18 U.S.C. \u00a7\u00a7 1591, 2422(b), 2423(a), and 2244. 42 U.S.C. \u00a7 16911(3)(A); White, 782 F.3d at 1133 (citing 42 U.S.C. \u00a7 16911(3)(A)). As the United States Supreme Court has stated, cross-references to other federal statutory provisions tend to suggest that Congress intended to refer to a generic offense instead of the specific conduct in which the defendant engaged. Nijhawan, 557 U.S. at 36-38, 174 L. Ed. 2d at 28-30 (explaining that the references in the Armed Career Criminal Act to specific federal crimes support use of the \u201ccategorical approach\u201d); cf. United States v. Dodge, 597 F.3d 1347, 1353-56 (11th Cir.) (en banc) (explaining that a \u201ccircumstance-specific approach\u201d is appropriate as applied to the phrase \u201cagainst a minor\u201d as found in 42 U.S.C. \u00a7 16911(5)(A)(ii) and (7)(I) given that these phrases do not include a cross-reference to another federal penal section), cert. denied, 562 U.S. 961, 178 L. Ed. 2d 287 (2010)). Thus, our reading of the relevant statutory language tends to suggest that Congress intended to refer to a generic offense rather than to the defendant\u2019s underlying conduct in the relevant portion of 42 U.S.C. \u00a7 16911.\nIn addition, in making this determination, we must consider\nthe practical difficulties and potential unfairness of applying a circumstance-specific approach, including the burden on the trial courts of sifting through records from prior cases, the impact of unresolved evidentiary issues, and the potential inequity of imposing consequences based on unproven factual allegations where the defendant has pleaded guilty to a lesser offense.\nWhite, 782 F.3d at 1132 (citing Taylor, 495 U.S. at 601-02, 109 L. Ed. 2d at 628-29). In conducting that inquiry, we note that a trial judge required to make the necessary categorization determination long after the date of a defendant\u2019s conviction may lack access to relevant factual information concerning the defendant\u2019s conduct, particularly in cases involving convictions resulting from a guilty plea rather than a jury verdict. See Descamps, _ U.S. at _, 186 L. Ed. 2d at 457 (noting that the use of the \u201ccircumstance-specific approach\u201d would require trial courts \u201cto expend resources examining (often aged) documents for evidence that a defendant admitted in a plea colloquy, or a prosecutor showed at trial, facts that, although unnecessary to the crime of conviction, satisfy an element of the relevant generic offense\u201d; that \u201c[t]he meaning of those documents will often be uncertain\u201d; and that \u201cthe statements of fact in them may be downright wrong\u201d). In addition, use of the \u201ccircumstance-specific approach\u201d would, in some instances, force trial courts to base their decisions on \u201cunresolved evidentiary issues\u201d and \u201cunproven factual allegations,\u201d White, 782 F.3d at 1132, 1135 (citing Taylor, 495 U.S. at 600-02, 109 L. Ed. 2d at 628-29), and result in what amounts to a mini-trial concerning the exact nature of a defendant\u2019s earlier conduct in which the defendant might be unable to effectively defend himself or herself due to the passage of time and other factors. Thus, the interpretation of the literal statutory language that we believe to be appropriate has the added benefit of avoiding a number of practical and equitable problems that would arise from reliance upon the \u201ccircumstance-specific approach\u201d for the puipose of determining whether defendant is a Tier I or a Tier II offender.\nThe reading of the relevant portion of 42 U.S.C. \u00a7 16911 that we believe to be appropriate is also consistent with the approach adopted by various federal courts and agencies in the course of resolving this issue. For example, the Fourth Circuit stated in Berry that \u201cSORNA\u2019s text ... suggests that the categorical approach should be used to determine whether a prior conviction is comparable to or more severe than the generic crimes listed in Section 16911 (4)(A).\u201d 814 F.3d at 197. The Tenth Circuit has reached the same conclusion. White, 782 F.3d at 1135 (concluding that \u201cCongress intended courts to apply a categorical approach to sex offender tier classifications designated by reference to a specific criminal statute\u201d). In fact, no federal circuit, to our knowledge, has construed the exact statutory provision at issue here differently than we do. Finally, the National Guidelines for Sex Offender Registration and Notification promulgated by the United States Department of Justice provide that, \u201cin assessing whether the offense satisfies the criteria for tier II or tier III classification, jurisdictions generally may premise the determination on the elements of the offense, and are not required to look to underlying conduct that is not reflected in the offense of conviction.\u201d The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38030, 38053 (July 2, 2008). As a result, for all of these reasons, we conclude that, in determining whether defendant\u2019s convictions for taking indecent liberties with a child suffice to make him a Tier II offender as defined in 42 U.S.C. \u00a7 16911(3)(A)(iv), we are required to utilize the categorical approach, as supplemented by the \u201cmodified categorical approach\u201d in the event that defendant was convicted of violating a divisible statute.\nAs we have already noted, N.C.G.S. \u00a7 14-202.1 prohibits \u201c[w]illfully tak[ing] or attempt[ing] to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire,\u201d id. \u00a7 14-202.1(a)(1), and \u201c[w]illfully commit[ting] or attempt[ing] to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years,\u201d id. \u00a7 14-202.1(a)(2). As of the present date, this Court has not had the opportunity to determine whether N.C.G.S. \u00a7 14-202.1(a) is or is not a divisible statute, particularly in the aftermath of the amendment to that statutory provision worked by Chapter 779 of the 1975 North Carolina Session Laws, which removed the requirement that the defendant act \u201cwith intent to commit an unnatural sexual act,\u201d N.C.G.S. \u00a7 14-202.1 (1969), from the crime of taking indecent liberties with children, and amended the remaining statutory language so as to create the two subdivisions, N.C.G.S. \u00a7 14-202.1(a)(1) and (a) (2), that have been contained in all versions of N.C.G.S. \u00a7 14-202.1(a) since the 1 October 1975 effective date of the amendment. Act of June 24,1975, ch. 779,1975 N.C. Sess. Laws 1105. Thus, given our willingness to authorize the use of the \u201cmodified categorical approach\u201d in appropriate cases, a determination of whether N.C.G.S. \u00a7 14-202.1(a) is a divisible statute must be made in order to properly determine whether defendant is eligible to seek relief from the existing requirement that he register as a sex offender.\nAn analysis of the literal language of N.C.G.S. \u00a7 14-202.1(a) provides a basis for arguing that N.C.G.S. \u00a7 14-202.1 is a divisible statute, with N.C.G.S. \u00a7 14-202.1(a)(l) and N.C.G.S. \u00a7 14-202.1(a)(2) being understood to state separate offenses. The Tenth Circuit read N.C.G.S. \u00a7 14-202.1(a) in just that manner. White, 782 F.3d at 1136. However, there is a reasonable and rational basis for taking the opposite position as well. For example, the Court of Appeals rejected a defendant\u2019s fatal variance claim even though the trial court instructed the jury concerning the issue of defendant\u2019s guilt of taking indecent liberties with a child by using the language \u201cfor the purpose of arousing or gratifying sexual desire\u201d as found in N.C.G.S. \u00a7 14-202.1(a)(l) when the indictment was couched solely in terms of the \u201clewd and lascivious act\u201d language contained in N.C.G.S. \u00a7 14-202.1(a)(2). State v. Wilson, 87 N.C. App. 399, 400-01, 361 S.E.2d 105, 106-07 (1987), disc. rev. denied, 321 N.C. 479, 364 S.E.2d 670 (1988). In addition, this Court and the Court of Appeals have upheld indecent liberties convictions under both subdivisions of N.C.G.S. \u00a7 14-202.1(a) based upon essentially identical conduct. See, e.g., State v. Banks, 322 N.C. 753, 767, 370 S.E.2d 398, 407 (1988) (concluding that the act of inserting an adult\u2019s tongue into a child\u2019s mouth constituted an \u201cimmoral, improper, or indecent\u201d act within the meaning of N.C.G.S. \u00a7 14-202.1(a)(1) and a \u201clewd or lascivious\u201d act within the meaning of N.C.G.S. \u00a7 14-202.1(a)(2)); State v. Hammett, 182 N.C. App. 316, 323, 642 S.E.2d 454, 459 (concluding that masturbating in a child\u2019s presence constituted an offense punishable pursuant to N.C.G.S. 14-202.1(a)(2)), appeal dismissed and disc. rev. denied, 361 N.C. 572, 651 S.E.2d 227 (2007); State v. Turman, 52 N.C. App. 376, 377, 278 S.E.2d 574, 575 (1981) (concluding that masturbating in a child\u2019s presence constituted an offense pursuant to N.C.G.S. \u00a7 14-202.1(a)(l)); cf. State v. Jones, 172 N.C. App. 308, 314-16, 616 S.E.2d 15, 19-20 (2005) (holding that a single act cannot support two convictions under both N.C.G.S. \u00a7 14-202.1(a)(l) and N.C.G.S. \u00a7 14-202.1(a) (2), respectively). In light of these decisions, at least four members of an en banc panel of the Fourth Circuit have determined that N.C.G.S. \u00a7 14-202.1(a) is not a divisible statute. United States v. Vann, 660 F.3d 771, 782-83 (4th Cir. 2011) (King, J., concurring, with Motz, Gregory, & Davis, JJ.). Thus, the extent to which N.C.G.S. \u00a7 14-202.1(a) is a divisible statute remains an open question about which reasonable minds can differ.\nAssuming, without in any way deciding, that N.C.G.S. \u00a7 14-202.1(a) is a divisible statute, additional questions of North Carolina law must be resolved before defendant\u2019s eligibility to seek the termination of his obligation to continue to register as a sex offender can be determined. Although this Court has held that proof that a touching occurred is not necessary for a finding of guilt for purposes of N.C.G.S. \u00a7 14-202.1(a) (1), see State v. Hartness, 326 N.C. 561, 567, 391 S.E.2d 177, 180 (stating that N.C.G.S. \u00a7 14-202.1(a)(l) does not require \u201cthe State [to] prove that a touching occurred\u201d), and while the Court of Appeals has held that proof of a touching is not necessary for a finding of guilt under N.C.G.S. \u00a7 14-202.1(a)(2), see Hammett, 182 N.C. App. at 323, 642 S.E.2d at 459 (holding that the defendant did not need to have physically touched the victim in order to be convicted of taking indecent liberties with a child in violation of N.C.G.S. \u00a7 14-202.1(a)(2)); State v. Every, 157 N.C. App. 200, 207, 578 S.E.2d 642, 648 (2003) (stating that \u201c[i]t is not necessary that an actual touching of the victim by defendant occur in order for the defendant to be \u2018with\u2019 a child for purposes of taking indecent liberties under [N.C.G.S.] \u00a7 14-202.1(a)(1)\u201d (citation omitted)), this Court has never addressed, much less decided, whether a physical touching of the victim is necessary for a defendant to be convicted of taking indecent liberties -with a child in violation of N.C.G.S. \u00a7 14-202.1(a)(2). For that reason, this Court has also never determined whether any such physical touching requirement applicable to N.C.G.S. \u00a7 14-202.1(a)(2) is limited to an \u201cintentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person.\u201d 18 U.S.C. \u00a7 2246(3). As a result, our existing precedent simply does not permit the making of certain preliminary determinations required for a showing that defendant\u2019s conviction for taking indecent liberties with a child is \u201ccomparable to or more severe than\u201d \u201cabusive sexual contact,\u201d Berry, 814 F.3d at 200 (quoting 42 U.S.C. 42 U.S.C. \u00a7 16911(4)(A)), or, alternatively, whether there is \u201ca realistic probability .. . that the State would apply [N.C.G.S. \u00a7 14-202.1(a)(2)] to conduct that falls outside the generic definition of\u2019 abusive sexual contact, Price, 777 F.3d at 704 (quoting Duenas-Alvarez, 549 U.S. at 193, 166 L. Ed. 2d at 693).\nEven if N.C.G.S. \u00a7 14-202.1(a)(2) is interpreted in such a manner as to make it comparable to abusive sexual contact in violation of 18 U.S. C. \u00a7 2244, the present record does not permit us to determine, using the limited range of documents delineated in Shepard, whether defendant was convicted of the offense spelled out in N.C.G.S. \u00a7 14-202.1(a) (2) rather than the offense spelled out in N.C.G.S. \u00a7 14-202.1(a)(1). As an initial matter, we note that the indictments returned against defendant for the purpose of charging him with taking indecent liberties with a child allege, in conjunction with a citation to N.C.G.S. \u00a7 14-202.1, that:\nthe defendant named above unlawfully, willfully, and felo-niously did take and attempt to take immoral, improper, and indecent liberties with the child named below for the purpose of arousing and gratifying sexual desire and did commit and attempt to commit a lewd and lascivious act upon the body of the child named below. At the time of this offense, the child named below was under the age of 16 years and the defendant named above was over 16 years of age and at least five years older than the child.\nSimilarly, the transcript of plea indicates that defendant had agreed to plead guilty to \u201ctwo counts of indecent liberties\u201d; the Felony Judgment Findings of Aggravating and Mitigating Factors describe defendant\u2019s \u201coffense\u201d as \u201cindecent liberties student\u201d; and the trial court\u2019s judgment indicates that defendant had been convicted of \u201cindecent liberties with a child,\u201d with an accompanying statutory reference to N.C.G.S. \u00a7 14-202.4(A). As a result, the materials contained in the present record that the trial court is authorized to consider pursuant to Shepard simply do not permit a determination that defendant was convicted of committing the offense made punishable by N.C.G.S. \u00a7 14-202.1(a)(2) to the exclusion of the offense made punishable by N.C.G.S. \u00a7 144202.1(a)(1) or to a generic offense made punishable by N.C.G.S. \u00a7 14-202.1. See Vann, 660 F.3d at 773-76 (per curiam) (holding that an indictment like that returned against defendant in this case did not suffice to permit a court to determine, for purposes of the \u201cmodified categorical approach,\u201d that the defendant was convicted of the offense made punishable by N.C.G.S. \u00a7 14-202.1(a)(2)).\nAlthough this Court has the authority to make a number of the determinations listed above without the necessity for further proceedings in the trial court, we believe, after careful consideration, that we should refrain from doing so at this point. As the record clearly reflects, neither the Court of Appeals nor the trial court considered the extent, if any, to which the necessary categorization decision could be made using the \u201cmodified categorical approach.\u201d For that reason, we have not had the benefit of briefing and argument concerning the numerous legal questions of first impression which must be resolved in order to determine defendant\u2019s eligibility for removal from the sex offender registry.. In fight of its misapprehension of the applicable law, which was entirely understandable given that many of the decisions upon which we have relied in this opinion had not been handed down by the date upon which it entered its order, the trial court failed to determine whether N.C.G.S. \u00a7 14-202.1(a) constitutes a divisible statute, whether a conviction for the offense made punishable by N.C.G.S. \u00a7 14-202.1(a)(2) requires proof that the defendant \u201cintentionally] touch[ed], either directly or through the clothing, . . . the [victim\u2019s] genitalia, anus, groin, breast, inner thigh, or buttocks,\u201d 18 U.S.C. \u00a7 2246(3), and the extent, if any, to which the information that could be appropriately considered under Shepard that was contained in the record tended to show that defendant\u2019s indecent liberties conviction rested solely upon a violation of N.C.G.S. \u00a7 14-202.1(a)(2). Consistent with the well-established legal principle that \u201c[f]acts found under misapprehension of the law will be set aside on the theory that the evidence should be considered in its true legal fight,\u201d Helms v. Rea, 282 N.C. 610, 620, 194 S.E.2d 1, 8 (1973) (brackets in original) (quoting McGill v. Town of Lumberton, 215 N.C. 752, 754, 3 S.E.2d 324, 326 (1939), and citing Davis v. Davis, 269 N.C. 120, 127, 152 S.E.2d 306, 312 (1967); Owens v. Voncannon, 251 N.C. 351, 355, 111 S.E.2d 700, 703 (1959); and In re Gibbons, 247 N.C. 273, 283, 101 S.E.2d 16, 23-24 (1957)), we believe that the most appropriate manner in which to resolve the issues that remain to be addressed in this case is for this Court to affirm the Court of Appeals\u2019 decision that the trial court erred by applying the \u201ccircumstance-specific approach\u201d in determining whether defendant should be deemed eligible to have the requirement that he register as a sex offender terminated. However, we modify the Court of Appeals\u2019 decision in order to require use of the \u201cmodified categorical approach\u201d rather than the pure \u201ccategorical approach\u201d in cases involving divisible statutes, and remand this case to the Superior Court, Catawba County, for further proceedings not inconsistent with this opinion. On remand, the trial court should consider whether N.C.G.S. \u00a7 14-202.1 is a divisible statute. If the trial court deems N.C.G.S. \u00a7 14-202.1 to be divisible,' it must then consider whether guilt of any separate offense set out in N.C.G.S. \u00a7 14-202.1(a)(2) requires proof of a physical touching and whether any such physical touching requirement necessitates proof that the defendant \u201cintentional[ly] touch[ed], either directly or through the clothing, [ ] the genitalia, anus, groin, breast, inner thigh, or buttocks of\u2019 the victim. Finally, if guilt of any separate offense set out in N.C.G.S. \u00a7 14-202.1(a)(2) requires proof that defendant \u201cintentional[ly] touch[ed], either directly or through the clothing, [ ] the genitalia, anus, groin, breast, inner thigh, or buttocks of\u2019 the victim, the trial court must determine whether any document that the trial court is authorized to consider under Shepard permits a determination that defendant was convicted of violating N.C.G.S. \u00a7 14-202.1(a)(2) rather than any specific offense set out ifi N.C.G.S. \u00a7 14-202.1(a)(l) or any generic offense made punishable pursuant to N.C.G.S. \u00a7 14-202.1(a). Finally, if necessary, the trial court should consider, in the exercise of its discretion, whether it should terminate defendant\u2019s obligation to register as a sex offender.\nMODIFIED AND AFFIRMED, AND REMANDED.\n. Although the record on appeal only contains a single indictment charging defendant with one count of first-degree statutory sexual offense and one count of taking indecent liberties with a child, the remaining documents contained in the record on appeal and the briefs that the parties submitted to both the Court of Appeals and this Court indicate that defendant was actually charged with two counts of both offenses.\n. The federal statutory provisions governing removal from a state\u2019s sex offender registry have been amended on a number of occasions. The relevant provisions were, as N.C.G.S. \u00a7 14-208.12A(al)(2) suggests, originally contained in the Jacob Wetterling Act, 14 U.S.C. \u00a7 14071 (1994), which was amended by the \u201cPam Lychner Sexual Offender Tracking and Identification Act of 1996.\u201d See Pub. L. No. 104-236, \u00a7\u00a7 1-2, 110 Stat. 3093, 3093-96. In 2006, portions of both the Lychner Act and the Wetterling Act were repealed following enactment of the Adam Walsh Child Protection and Safety Act, which currently governs removal from North Carolina\u2019s sex offender registry for purposes of N.C.G.S. \u00a7 14-208.12A(al)(2).\n. SORNA is codified, for the most part, at 42 U.S.C. \u00a7\u00a7 16901-16962 (2012).\n. As a result of the fact that the same analysis we have utilized to address the State\u2019s contention that defendant should be categorized as a Tier II offender would be appropriate in the event that the State were to contend that defendant should be categorized as a Tier lH offender, our discussion of the merits of the contention that the State has actually made in this case suffices to permit an appropriate disposition in this case. We do not, however, wish for the discussion contained in the text of this opinion to be understood as limiting the extent to which the Superior Court, Catawba County, is entitled to classify defendant as a Tier I, a Tier H, or a Tier m offender on remand.\n. A careful examination of 18 U.S.C. \u00a7\u00a7 2241(a), 2241(b), 2242, 2243(a), 2243(b), and 2241(c) reveals that guilt of the offenses delineated in each of these statutory provisions requires proof that the offender \u201cengage[d] in or cause[d] sexual contact with or by another person,\u201d 18 U.S.C. \u00a7 2244, in such a manner as to result in the commission of a \u201csexual act,\u201d which is defined as \u201ccontact between the penis and the vulva or the penis and the anus,\u201d with \u201ccontact involving the penis occur[ring] upon penetration, however slight;\u201d \u201ccontact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;\u201d \u201cthe penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person;\u201d or \u201cthe intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person,\u201d id. \u00a7 2246(2)(A)-(D). However, given that the offense set out in 18 U.S.C. \u00a7 2244(b) does not require proof that the offender committed a \u201csexual act\u201d and given that conviction for an offense \u201ccomparable to or more severe\u201d than that defined in 18 U.S.C. \u00a7 2244(b) would suffice to render the person in question a Tier II offender even if that offense was not also \u201ccomparable to or more severe than\u201d the offenses delineated in 18 U.S.C. \u00a7 2244(a), see 42 U.S.C. \u00a7 16911(3)(A)(iv), we need not address the extent, if any, to which defendant\u2019s conviction for taking indecent liberties with a child would be \u201ccomparable to or more severe than\u201d a conviction for the offenses requiring proof of the commission of a \u201csexual act\u201d delineated in 18 U.S.C. \u00a7 2244(a).\n. The \u201ccircumstance-specific approach\u201d is also known as the \u201cnon-categorical approach.\u201d See United States v. Price, 777 F.3d 700, 705 (4th Cir.), cert. denied, _ U.S. _, 192 L. Ed. 2d 941 (2015).\n. The greater flexibility allowed through the use of the \u201cmodified categorical approach\u201d is not available in the event that the relevant state statute specifies several alternative means of committing a crime, one of which would bring the statute of conviction within the definition of the generic crime, instead of setting out alternative offenses made up of differing elements. Mathis v. United States, 579 U.S. _, _, 195 L. Ed. 2d 604, 616-18 (2016); see also id. at _, 195 L. Ed. 2d at 610 (defining \u201celements\u201d as \u201cthe \u2018constituent parts\u2019 of a crime\u2019s legal definition\u2014the things the \u2018prosecution must prove to sustain a conviction\u2019 \u201d (quoting Black\u2019s Law Dictionary 634 (10th ed. 2014)) and defining \u201cfacts\u201d as \u201cmere real-world things\u2014extraneous to the crime\u2019s legal requirements\u201d that \u201cneed neither be found by a jury nor admitted by a defendant\u201d (citing Black\u2019s Law Dictionary 709)).\n. A number of courts that utilize the \u201ccategorical approach\u201d for other purposes have adopted the \u201ccircumstance-specific\u201d method for the purpose of applying the statutory reference to the commission of a crime \u201cagainst a minor\u201d contained in 42 U.S.C. \u00a7 16911(3). See generally Berry, 814 F.3d at 197 (stating that \u201cthe language of Section 16911(3)(A), like the language of Section 16911(4)(A), instructs courts to apply the categorical approach when comparing prior convictions with the generic offenses listed except when it comes to the specific circumstance of the victims\u2019 ages\u201d (citations omitted)); Gonzalez-Medina, 757 F.3d at 429 (concluding \u201cthat Congress contemplated a non-categorical approach to the age-differential determination in the \u00a7 16911(5)(C) exception\u201d); Dodge, 597 F.3d at 1356 (\u201chold[ing] that courts may employ a noncategorical approach to examine the underlying facts of a defendant\u2019s offense, to determine whether a defendant has committed a \u2018specified offense against a minor\u2019 and is thus a \u2018sex offender\u2019 subject to SORNA\u2019s registration requirement\u201d); United States v. Mi Kyung Byun, 539 F.3d 982, 990-94 (9th Cir.) (determining that the phrase \u201ca specified offense against a minor\u201d contained in 42 U.S.C. \u00a7 16911(5)(A)(ii) and (7) allows for a \u201ccircumstance-specific approach\u201d), cert. denied, 555 U.S. 1088, 172 L. Ed. 2d 761 (2008). We agree with the approach to age-related issues deemed appropriate in the cases and hold that North Carolina courts should use the non-categorical or \u201ccircumstance-specific approach\u201d in addressing any age-related issues that may arise in the course of determining whether an individual seeking the termination of an existing sex offender registration requirement should be categorized as a Tier I, a Tier n, or a Tier HI offender.\n. Although the State filed a motion seeking to have the statutory reference contained in the judgment changed from N.C.G.S. \u00a7 14-202.4(A) to N.C.G.S. \u00a7 14-202.1, the record contains no indication that this amendment request was ever approved.\n. As we noted earlier, the trial court did find that, \u201c[pjrior to the court\u2019s sentencing of the defendant, the State gave a statement of facts in support of the plea during which it was stated that the defendant had engaged in improper touching of the defendant\u2019s daughter, a child of the age of 4 years, and that he had masturbated in the presence of the child,\u201d with this \u201cimproper touching [having] occurred in the vaginal area of the child.\u201d Although defendant did not challenge the sufficiency of the evidence to support this finding on appeal, the exact basis for this finding and the extent to which the trial court was entitled to consider the information upon which this finding was based pursuant to Shepard is unclear given that we have not been provided with a transcript of the hearing held before the trial court for the purpose of considering defendant\u2019s request for the termination of his obligation to register as a sex offender. However, the State did indicate in its brief before this Court that, \u201c[t]hough no transcript from the formal plea proceedings was introduced as an exhibit, the State\u2019s description of its stated factual basis was not disputed by [defendant]\u201d and was \u201ccorroborated by the testimony from [defendant\u2019s] witness.\u201d As a result, the trial court\u2019s finding concerning the conduct underlying defendant\u2019s conviction for taking indecent liberties with a child appears to rest, at most, upon a subsequent reconstruction of a factual basis statement offered in support of defendant\u2019s guilty plea rather than any sort of contemporaneously generated document of the type contemplated by Shepard. We need not determine whether the trial court was entitled to consider this information at this point given the disposition that we have deemed appropriate in this case and leave the determination of whether the information upon which the trial court relied in its initial order could be considered in determining defendant\u2019s eligibility to have his sex offender registration obligation terminated consistent with Shepard for consideration on remand.", "type": "majority", "author": "ERVIN, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by William P. Hart, Jr., Assistant Attorney General, for the State-appellant.", "Crowe & Davis, P.A., by H. Kent Crowe; and LeCroy Law Firm, PLLC, by M. Alan LeCroy, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES KEVIN MOIR\nNo. 49PA14\nFiled 21 December 2016\nSentencing\u2014sex offender registration\u2014petition to terminate\nIn a case involving the trial court\u2019s denial of defendant\u2019s petition to terminate his sex offender registration, the North Carolina Supreme Court remanded to the trial court for application of the \u201cmodified categorical approach\u201d to determine whether defendant was eligible for termination of the registration requirement. Federal statutory provisions governing termination of sex offender registration, which involve tier levels for different categories of sexual offenses, interact with state law. Defendant\u2019s eligibility for termination of registration depended upon the extent to which his convictions for indecent liberties were comparable to or more severe than convictions for abusive sexual conduct under the federal statute.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 231 N.C. App. 628, 753 S.E.2d 195 (2014), vacating an order entered on 18 February 2013 by Judge Richard D. Boner in Superior Court, Catawba County, and remanding this case to the Superior Court, Catawba County, for further proceedings. Heard in the Supreme Court on 16 February 2015.\nRoy Cooper, Attorney General, by William P. Hart, Jr., Assistant Attorney General, for the State-appellant.\nCrowe & Davis, P.A., by H. Kent Crowe; and LeCroy Law Firm, PLLC, by M. Alan LeCroy, for defendant-appellee.\n. H. Kent Crowe filed an appellee\u2019s brief on defendant\u2019s behalf before unexpectedly dying prior to the holding of oral argument. On 29 January 2015, this Court allowed defendant\u2019s motion to substitute M. Alan LeCroy as defendant\u2019s counsel." }, "file_name": "0370-01", "first_page_order": 446, "last_page_order": 466 }