                                NO. COA13-589

                    NORTH CAROLINA COURT OF APPEALS

                          Filed: 7 January 2014


STATE OF NORTH CAROLINA

     v.                                    Catawba County
                                           No. 01 CRS 1284
JAMES KEVIN MOIR



     Appeal by defendant from order entered 18 February 2013 by

Judge Richard D. Boner in Catawba County Superior Court.           Heard in

the Court of Appeals 21 October 2013.


     Attorney General Roy Cooper, by Associate Attorney General J.
     Rick Brown, for the State.

     Crowe & Davis,     P.A.,    by   H.   Kent   Crowe,   for   defendant-
     appellant.


     STEELMAN, Judge.


     Where defendant was convicted of an offense qualifying him as

a Tier I sex offender under the Adam Walsh Act, he was eligible

for termination from registration in 10 years.             The trial court

erred in concluding that defendant was not a Tier I offender.

                I. Factual and Procedural Background

     On 9 January 2001, James Kevin Moir (defendant) was indicted

for first-degree statutory sexual offense and indecent liberties

with a child.   On 5 September 2001, defendant pled guilty to two
                                  -2-
counts of indecent liberties with a child in exchange for the

dismissal of the first-degree sexual offense charges.            On 28

November     2001,   defendant   was    sentenced   to   16-20   months

imprisonment. This sentence was suspended and defendant was placed

on supervised probation for 60 months, and ordered to pay court

costs.      Defendant was further required to register as a sex

offender.    Defendant did so on 15 March 2002.      On 25 June 2007,

defendant’s probation was terminated by the court.

     On 22 May 2012, defendant filed a Petition for Termination of

Sex Offender Registration in the Superior Court of Catawba County.

On 18 February 2013, the trial court denied defendant’s petition.

     Defendant appeals.

                          II. Request for Relief

     In his sole argument on appeal, defendant contends that the

trial court erred as a matter of law in ruling that the relief

sought by defendant failed to comply with the federal Jacob

Wetterling Act and the federal Adam Walsh Act.       We agree.

                        A. Standard of Review

      “Resolution of issues involving statutory construction is

ultimately a question of law for the courts.        [W]here an appeal

presents [a] question[] of statutory interpretation, full review

is appropriate, and we review a trial court’s conclusions of law
                                 -3-
de novo.”    State v. Davison, 201 N.C. App. 354, 357, 689 S.E.2d

510, 513 (2009) (citations and quotations omitted), disc. review

denied, 364 N.C. 599, 703 S.E.2d 738 (2010).

                             B. Analysis

    N.C. Gen. Stat. § 14-208.12A provides that:

            (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.

            ...

            (a1) The court may grant the relief if:

            (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,

            (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

            (3) The court is otherwise satisfied that the
            petitioner is not a current or potential
            threat to public safety.

N.C. Gen. Stat. § 14-208.12A (2011).       In the instant case, the

trial court found that defendant had been subject to registration

for at least 10 years, had not been subsequently arrested for or
                                -4-
convicted of any offenses that would require registration, and had

a low risk of re-offending.    However, the trial court then found

that:

          11. Touching of the genital area of a minor
          with the intent to gratify sexual desire is
          considered   "sexual   contact"   under   the
          provisions of 18 U.S.C. § 2246(3), and sexual
          contact is classified as "abusive sexual
          contact" under 18 U.S.C. § 2244.

          12. Abusive sexual contact is considered to
          be a Tier II offense under the provisions of
          42 U.S.C. § 16911(3)(A)(iv).

          13. The registration for Tier II offenses
          under the provisions of the Jacob Wetterling
          Act, 42 U.S.C. § 14071, and the provisions of
          the Adam Walsh Child Protection and Safety Act
          of 2006, 42 U.S.C. § 16911, et seq., is 25
          years. This registration period cannot be
          reduced.

          14. The defendant has not been registered as
          a sex offender for at least 25 years.

     Based upon these findings, the trial court concluded that the

termination of defendant’s sex offender registration would not

comply with the Jacob Wetterling Act, or its amended form, the

Adam Walsh Act.     The trial court therefore denied defendant’s

motion.

     The federal statute in question, the Adam Walsh Act, provides

the following definitions:

          (2)     Tier I sex offender
                        -5-
The term “tier I sex offender” means a sex
offender other than a tier II or tier III sex
offender.

(3)   Tier II sex offender

The term “tier II sex offender” means a sex
offender other than a tier III sex offender
whose offense is punishable by imprisonment
for more than 1 year and—

(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:

(i)   sex   trafficking   (as     described       in
section 1591 of Title 18);

(ii) coercion and enticement (as described
in section 2422(b) of Title 18);

(iii) transportation with intent to engage in
criminal sexual activity (as described in
section 2423(a)) of Title 18;

(iv) abusive sexual contact (as described in
section 2244 of Title 18);

(B)   involves—

(i)   use of a minor in a sexual performance;

(ii) solicitation   of    a   minor   to   practice
prostitution; or

(iii) production   or    distribution      of   child
pornography; or

(C)   occurs after the offender becomes a tier
I sex offender.
                                -6-
42 U.S.C. § 16911 (2006).   We note that this act defines offender

status by the offense charged, not by the facts underlying the

case.    Specifically, we read language such as “whose offense is

punishable by imprisonment for more than 1 year[,]” as well as the

lists of elements of the offense, as an indication that Tier status

as a sex offender is based upon the elements of the offense, not

upon the evidence presented as to the facts underlying it.   In the

instant case, however, the trial court based its ruling upon the

facts underlying the plea, not upon the pled offense of indecent

liberties.

     The trial court’s interpretation of federal statute was in

error.    In the instant case, defendant pled guilty to indecent

liberties with a child.   In In re Hamilton, ___ N.C. App. ___, 725

S.E.2d 393 (2012), we held that a conviction of indecent liberties

with a child results in Tier I sex offender status.    Pursuant to

the Adam Walsh Act, a person convicted of indecent liberties would

be subject to 15 years of registration, which may be terminated in

ten years as provided in N.C. Gen. Stat. § 14-208.12A.       Id. at

___, 725 S.E.2d at 399.     Similarly, in In re McClain, ___ N.C.

App. ___, 741 S.E.2d 893 (2013), the parties stipulated, and we

held, that a defendant who pled guilty to indecent liberties with
                                 -7-
a child was a Tier I sex offender.     McClain at ___, 741 S.E.2d at

896.

       We find Hamilton and McClain determinative of the instant

case.     Defendant pled guilty to indecent liberties, and was

therefore a Tier I sex offender.   We hold that the relief he sought

complied with the Adam Walsh Act.      However, we noted in Hamilton:

            the ultimate decision of whether to terminate
            a sex offender's registration requirement
            still lies in the trial court's discretion.
            See   N.C.   Gen.   Stat.   §   14–208.12A(a1)
            (providing that a trial court “may” grant a
            petitioner relief if terms of the statute are
            met). Thus, after making findings of fact
            supported by competent evidence on each issue
            raised in the petition, the trial court is
            then free to employ its discretion in reaching
            its conclusion of law whether Petitioner is
            entitled to the relief he requests.

Hamilton at ___, 725 S.E.2d at 399.

       Upon remand, the trial court is instructed to re-evaluate its

findings in accordance with this opinion.       It may then, in its

discretion, grant or deny defendant’s petition.

       VACATED AND REMANDED.

       Chief Judge MARTIN and Judge DILLON concur.
