IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-336

No. COA21-434

Filed 17 May 2022

Forsyth County, No. 20CRS1733

IN THE MATTER OF:

TERRELL McILWAIN, Petitioner.

Appeal by Petitioner from order entered 22 March 2021 by Judge David L. Hall

in Forsyth County Superior Court. Heard in the Court of Appeals 9 February 2022.

Appellate Defender Glenn Gerding and Assistant Appellate Defender Andrew 

DeSimone for Petitioner-Appellant.

Attorney General Joshua H. Stein, by Assistant Attorney General Alex R. 

Williams, for the State-Appellee.

COLLINS, Judge.

¶ 1 Petitioner Terrell McIlwain appeals the trial court’s order requiring him to 

register in North Carolina as a sex offender based on a Texas conviction for possession

or promotion of lewd visual material depicting a child. Petitioner argues that the 

trial court erred by concluding that the Texas offense of possession or promotion of 

lewd visual material depicting a child is substantially similar to the North Carolina 

offense of second-degree exploitation of a minor. We conclude that the offenses are 

substantially similar and we affirm the trial court’s order.
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2022-NCCOA-336

Opinion of the Court

I. Background

¶ 2 Petitioner Terrell McIlwain was convicted in July 2020 of possession or 

promotion of lewd visual material depicting a child, under Texas Penal Code § 43.262

(“Texas offense”). Petitioner was notified in December 2020 that he was required by 

law to register in North Carolina as a sex offender, based on his out-of-state

conviction, and of his right to contest the requirement to register. 

¶ 3 Petitioner filed a petition, pursuant to N.C. Gen. Stat. § 14-208.12B, contesting 

his required registration. The matter came on for hearing on 22 March 2021. The 

trial court found the Texas offense was substantially similar to the North Carolina 

offense of second-degree exploitation of a minor, under N.C. Gen. Stat. § 14-190.17(a)

(“North Carolina offense”), a conviction requiring a person to register in North 

Carolina as a sex offender. The trial court entered a written order requiring

Petitioner to register as a sex offender. 

¶ 4 Petitioner timely appealed. 

II. Discussion

¶ 5 Petitioner argues the trial court erred by finding that the Texas offense is 

substantially similar to the North Carolina offense and thus, erred by ordering him 

to register as a sex offender.
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Opinion of the Court

A. Standard of Review

¶ 6 Whether an out-of-state offense is substantially similar to a North Carolina

offense is a question of law, reviewed de novo on appeal. State v. Fortney, 201 N.C. 

App. 662, 669, 687 S.E.2d 518, 524 (2010).

B. Analysis

¶ 7 A conviction requiring a person to register in North Carolina as a sex offender 

(“reportable conviction”) includes “[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 in Section 14-208.6(5). N.C. Gen. Stat. 

§ 14-208.6(4)(b) (2020). Second-degree sexual exploitation of a minor is a sexually 

violent offense. See id. §§ 14-208.6(5), 14-190.17 (2020). When a person files a 

petition for a judicial determination regarding whether they must register in North 

Carolina as a sex offender based on an out-of-state conviction, the trial court must

determine whether the conviction for the out-of-state offense “is substantially similar 

to a reportable conviction” in North Carolina. Id. § 14-208.12B(d) (2020). At the 

hearing on the petition, the State “has the burden to prove by a preponderance of the 

evidence, that the person’s out-of-state . . . conviction is for an offense, which if 

committed in North Carolina, was substantially similar to a sexually violent offense, 

or an offense against a minor.” Id. § 14-208.12B(c) (2020). “The person may present 

evidence in support of the lack of substantial similarity between the out-of-state” 
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Opinion of the Court

offense and the North Carolina offense, and “[t]he court may review copies of the 

relevant out-of-state . . . criminal law and compare the elements of the out-of-state 

. . . offense to those purportedly similar to a North Carolina offense.” Id. “If the 

presiding superior court judge determines the out-of-state . . . conviction is 

substantially similar to a reportable conviction, the judge shall order the person to 

register as a sex offender[.]” Id. § 14-208.12B(d).

¶ 8 The determination of whether an out-of-state conviction is for an offense that 

is substantially similar to a North Carolina offense “is a question of law involving 

comparison of the elements of the out-of-state offense to those of the North Carolina 

offense.” State v. Sanders, 367 N.C. 716, 720, 766 S.E.2d 331, 334 (2014) (quotation 

marks and citation omitted) (analyzing the similarity between an out-of-state statute 

and a North Carolina statute in the context of sentencing points for prior convictions). 

We do not “look beyond the elements of the offenses” to consider the underlying facts 

of a defendant’s out-of-state conviction or the legislative purpose of the respective 

statutes defining the offenses. Id. at 719, 766 S.E.2d at 333. The requirement set 

forth in N.C. Gen. Stat. § 14-208.12B(d) “is not that the statutory wording precisely 

match, but rather that the offense be ‘substantially similar.’” State v. Sapp, 190 N.C. 

App. 698, 713, 661 S.E.2d 304, 312 (2008). 
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Opinion of the Court

¶ 9 In Texas, a person commits the offense of possession or promotion of lewd 

visual material depicting a child 

if the person knowingly possesses, accesses with intent to 

view, or promotes visual material that: 

(1) depicts the lewd exhibition of the genitals or pubic area 

of an unclothed, partially clothed, or clothed child who is 

younger than 18 years of age at the time the visual 

material was created; 

(2) appeals to the prurient interest in sex; and 

(3) has no serious literary, artistic, political, or scientific 

value.

Tex. Penal Code § 43.262(b) (2020).

¶ 10 In comparison, in North Carolina, a person commits the offense of seconddegree sexual exploitation of a minor

if, knowing the character or content of the material, he:

(1) Records, photographs, films, develops, or duplicates 

material that contains a visual representation of a minor 

engaged in sexual activity; or

(2) Distributes, transports, exhibits, receives, sells, 

purchases, exchanges, or solicits material that contains a 

visual representation of a minor engaged in sexual activity.

N.C. Gen. Stat. § 14-190.17 (2020). The definition of “sexual activity” includes the 

“lascivious exhibition of the genitals or pubic area of any person.” 

Id. § 14-190.13(5)(g) (2020). The term “lascivious” has been defined as “tending to 

arouse sexual desire.” State v. Corbett, 264 N.C. App. 93, 100, 824 S.E.2d 875, 880 
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(2019) (citations omitted).

¶ 11 Both offenses include an element of the defendant’s knowledge. Furthermore, 

the “visual material” prohibited in Texas is nearly identical to the “visual 

representation” prohibited in North Carolina: both graphically depict the genital or 

pubic area of a child who is under the age of 18 in a manner that appeals to and 

arouses sexual desires. See The American Heritage Dictionary 771 (5th ed. 2022)

(defining “lewd” as “preoccupied with sex and sexual desire; lustful; obscene; 

indecent”; and defining “lascivious” as “given to or expressing lust . . . exciting sexual 

desires; salacious”). Moreover, the criminalized behavior of possessing, accessing 

with intent to view, or promoting the “visual material” in Texas is comparable to the 

criminalized behavior of recording, photographing, filming, developing, duplicating, 

distributing, transporting, exhibiting, receiving, selling, purchasing, exchanging, or 

soliciting the “visual representation” in North Carolina. Based on a comparison of 

the elements of the Texas offense of possession or promotion of lewd visual material 

depicting a child and the North Carolina offense of second-degree sexual exploitation 

of a minor, we hold that the two offenses are substantially similar.

¶ 12 Our holding is in line with State v. Graham, wherein the North Carolina 

Supreme Court determined that the defendant’s conviction for the Georgia offense of 

statutory rape was substantially similar to a North Carolina Class B1 felony for the 

purpose of calculating prior record level points for criminal sentencing. 379 N.C. 75,
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2021-NCSC-125, ¶ 18. The Supreme Court compared the elements of the two offenses 

and agreed with this Court “that the trial court did not err in finding the two offenses 

substantially similar as Ga. Code Ann. § 16-6-3 outlaws statutory rape of a person 

who is under the age of sixteen and N.C. [Gen. Stat.] § 14-27.25 prohibits statutory 

rape of a person who is fifteen years of age or younger.” Id. at ¶ 8 (quotation marks 

and citation omitted). The Court then addressed the defendant’s argument that 

the Georgia statutory rape statute and the North Carolina 

statutory rape statute are not substantially similar in 

addressing the criminal offenses which they respectively 

prohibit in that there is no age difference element in the 

Georgia law, because unlike the North Carolina law which 

identifies specific age differences in its felony 

classifications, defendant notes that “the Georgia statute 

applies equally to all persons under the age of 16 years.” 

He expounds upon this “lack of an age difference element 

in the Georgia statutory rape statute” by offering 

hypothetical examples of sexual intercourse which he 

posits would constitute the offense of statutory rape in 

Georgia but would not constitute the offense of statutory 

rape in North Carolina. Defendant submits that in a 

comparison of a North Carolina statute with another 

state’s statute in order to determine substantial similarity 

between the two, if the difference between the two statutes 

renders the other state’s law narrower or broader, “or if 

there are differences that work in both directions, so that 

each statute includes conduct not covered by the other, 

then the two statutes will not be substantially similar for 

purposes of the statute.” Additionally, defendant asserts 

that the Georgia law under examination here is not 

substantially similar to the North Carolina enactment to 

which it is being paralleled because the Georgia law can be 

violated “by conduct that is only a Class C felony . . . in 

North Carolina.”
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Id. at ¶ 10. The Court found these arguments “unpersuasive,” and explained as 

follows:

Defendant’s position conflates the requirement that 

statutes subject to comparison be substantially similar to 

one another with his erroneous perception that the two 

statutes must have identicalness to each other. As we 

previously noted in our recognition of Sapp, 190 N.C. App. 

at 713, 661 S.E.2d 304, the statutory wording of the 

Georgia provision and the North Carolina provision do not 

need to precisely match in order to be deemed to be 

substantially similar. Likewise, defendant’s stance that 

the Georgia statute and the North Carolina statute cannot 

be considered to be substantially similar because not every 

violation of the Georgia law would be tantamount to the 

commission of a Class B1 felony under the comparative 

North Carolina law is unfounded.

Id. at ¶ 11. The Court further expounded as follows:

There are so many iterations of so many similar laws 

written in so many different ways, in North Carolina and 

in the forty-nine other states in America, that the courts of 

this state must necessarily possess the ability to operate 

with the flexibility that the phrase “substantially similar” 

inherently signifies in determining whether statutes which 

are being compared share the operative elements in the 

evaluation. While such an exercise is predictably 

challenging, we are confident that the courts of this state 

have sufficient guidance and flexibility to properly conduct 

the prescribed analysis of the statutes’ respective elements.

Id. at ¶ 16.

¶ 13 Petitioner raises similar arguments to those rejected in Graham. First, 

Petitioner argues that the Texas offense is not substantially similar to the North 
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Carolina offense because the Texas offense prohibits a visual depiction of the “lewd 

exhibition of the genitals or pubic area of [a] . . . clothed child” while the North 

Carolina statute, which prohibits the “lascivious exhibition of the genitals or pubic 

area of any person,” does not apply to the “mere exhibition of the genitals or pubic 

area of a clothed child.” We disagree for two reasons. First, according to its plain 

terms, the statute applies to the “lascivious exhibition of the genitals or pubic area of 

any person” and nothing in these terms limits its application to the exhibition of the 

genitals or pubic area of a clothed child. “[I]t is our duty to give effect to the words 

actually used in a statute and not to delete words used or to insert words not used.” 

State v. Heelan, 263 N.C. App. 275, 281, 823 S.E.2d 106, 111 (2018) (citation omitted). 

Furthermore, even if the North Carolina statute does not apply to visual depictions 

of the genitals or pubic area of a clothed child, substantial similarity between the two 

offenses is not a “requirement of exactitude.” Graham, 2021-NCSC-125, ¶ 12.

¶ 14 Petitioner also argues that the offenses are not substantially similar because 

the Texas statute applies to any “child who is younger than 18 years of age,” 

Tex. Penal Code § 43.262(b)(1), while the North Carolina statute applies to any child 

younger than eighteen who is “not married or judicially emancipated,” N.C. Gen. Stat. 

§ 14-190.13(3) (2020).

1 “Defendant’s position conflates the requirement that statutes 

 

1 The definition of “minor” in North Carolina is “[a]n individual who is less than 18 

years old and is not married or judicially emancipated.” N.C. Gen. Stat. § 14-190.13(3).
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subject to comparison be substantially similar to one another with his erroneous 

perception that the two statutes must have identicalness to each other.” Graham,

2021-NCSC-125, ¶ 11. The statutory wording of the Texas statute and the North 

Carolina statute “do not need to precisely match in order to be deemed to be 

substantially similar.” Id. 

III. Conclusion

¶ 15 The “obvious essential pertinent parallels” between the Texas offense and the 

North Carolina offense lead us to hold that the possession or promotion of lewd visual 

material depicting a child under Texas Penal Code § 43.262 is substantially similar 

to second-degree exploitation of a minor under N.C. Gen. Stat. § 14-190.17. See 

Graham, 2021-NCSC-125, ¶ 12. Accordingly, we affirm the trial court’s order

requiring Petitioner to register in North Carolina as a sex offender.

AFFIRMED.

Judges ZACHARY and CARPENTER concur.