State Carolina v. Fox, COA11–273.

• Decision Date: 04 October 2011
• Docket Number: No. COA11–273.,COA11–273.
• Parties: STATE of North Carolinav.Terry A. FOX, Defendant.
• Court: North Carolina Court of Appeals

716 S.E.2d 261

STATE of North Carolina

v.Terry A. FOX, Defendant.

No. COA11–273.

Court of Appeals of North Carolina.

Oct. 4, 2011.

Appeal by defendant from judgment entered 4 November 2010 by Judge Kenneth F. Crow in Carteret County Superior Court. Heard in the Court of Appeals 12 September 2011.

Roy Cooper, Attorney General, by Peter A. Regulski, Assistant Attorney General, for the State.

John T. Hall, Raleigh, for defendant-appellant.

MARTIN, Chief Judge.

Defendant Terry A. Fox appeals from a judgment entered upon a jury verdict finding him guilty of willfully failing to comply with the sex offender registration reporting requirements set forth in N.C.G.S. § 14–208.9. We find no error.

Defendant stipulated at trial and does not dispute on appeal that he was convicted of second-degree rape on 9 February 1996 in Carteret County, North Carolina, and that, as a result of this conviction, defendant was required to register as a sex offender in the county. The record further shows that defendant did register as a sex offender in Carteret County on 2 February 2006 and that he “was required to notify the sheriff of a change of address no later than 3 days after the change.”

The evidence presented at trial tended to show that, in 2009, Angela Wall lived in the downstairs apartment of a two-story, two-unit converted garage at 2717 Piney Park Circle in Morehead City, North Carolina. Ms. Wall worked evenings at the Crystal Clean Laundromat, and spent her days at home with her daughter and then-four-year-old grandson. According to Ms. Wall's testimony, when the apartment above hers became vacant, Ms. Wall notified her manager at the laundromat, Katina Teague, of the vacancy, who moved into the upstairs apartment shortly thereafter with her twelve-year-old son, Daren. Because of the open, external staircase leading up to Ms. Teague's apartment, and because the only barrier between the apartments was Ms. Teague's floor, Ms. Wall said that, while she was in her apartment or outside smoking, she was aware of the comings and goings in and out of Ms. Teague's apartment and could “hear [ ] everything.”

According to Ms. Wall, about two months after Ms. Teague moved into the upstairs apartment, defendant—who had recently begun dating Ms. Teague—also moved into the upstairs apartment. Defendant's living arrangement with Ms. Teague continued for several months until the end of December 2009, when Ms. Wall “got the word” that defendant was a registered sex offender, and reported the information to her landlord and then to the police.

Detective Harold Pendergrass with the Carteret County Sheriff's Department was responsible for overseeing the sex offender registry for Carteret County. Detective Pendergrass testified that, in November 2008, he met with defendant to review defendant's responsibilities to comply with the statutory requirements of registering as a convicted sex offender. During this visit with Detective Pendergrass, defendant completed an acknowledgement form on which defendant affixed his initials more than twenty-five times to affirm that he understood what was required of him to remain in compliance with the sex offender registry program, including the requirement that he must notify the county sheriff when he changes his address. At the time that Ms. Wall contacted the police in December 2009 to report that defendant was living in the apartment above hers in Morehead City, the detective had not been informed that defendant had changed his address from his father's residence at 177 Pagoda Court in Newport, North Carolina, to the Piney Park Circle apartment in Morehead City.

After concluding his investigation of Ms. Wall's complaint, the detective obtained a warrant for defendant's arrest. Defendant was indicted for failing to notify the sheriff of his change of address as required by Article 27A of the General Statutes. See N.C. Gen.Stat. §§ 14–208.9, 14–208.11(a)(2) (2009). At trial, defendant moved to dismiss the charge at the close of the State's evidence and at the close of all of the evidence, which the court denied. Defendant was found guilty by a jury of willfully failing to comply with the change of address notification requirements of the sex offender registry and, on 4 November 2010, the court ordered defendant to serve a mitigated sentence of twenty to twenty-four months imprisonment. Defendant appeals.

_________________________

I.

Defendant first contends the trial court erred by denying his motion to dismiss because he asserts that the State provided insufficient evidence that defendant changed his address. We disagree.

“Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). “The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom....” Id. at 99, 261 S.E.2d at 117. “The defendant's evidence, unless favorable to the State, is not to be taken into consideration. However, when not in conflict with the State's evidence, it may be used to explain or clarify that offered by the State.” State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971). “[C]ontradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.” Powell, 299 N.C. at 99, 261 S.E.2d at 117. “The trial court in considering such motions is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight.” Id. “The trial court's function is to test whether a reasonable inference of the defendant's guilt of the crime charged may be drawn from the evidence.” Id.

Although the offense for which defendant was convicted is a violation of N.C.G.S. § 14–208.9, this Court has previously determined that, because N.C.G.S. §§ 14–208.9 and 14–208.11 “deal with the same subject matter, they must be construed in pari materia to give effect to each.” State v. Holmes, 149 N.C.App. 572, 576, 562 S.E.2d 26, 30 (2002). N.C.G.S. § 14–208.9(a) provides, in relevant part: “If a person required to register changes address, the person shall report in person and provide written notice of the new address not later than the third business day after the change to the sheriff of the county with whom the person had last registered.” N.C. Gen.Stat. § 14–208.9(a); Holmes, 149 N.C.App. at 576, 562 S.E.2d at 30. A person required to register in accordance with Article 27A who “willfully ... [f]ails to notify the last registering sheriff of a change of address as required by this Article” is guilty of a Class F felony. N.C. Gen.Stat. § 14–208.11(a)(2); Holmes, 149 N.C.App. at 576, 562 S.E.2d at 30. Read together, the offense of failing to notify the appropriate sheriff of a sex offender's change of address “contains three essential elements: (1) the defendant is a person required ... to register; (2) the defendant change[s] his or her address; and (3) the defendant [willfully ¹] [f]ails to notify the last registering sheriff of [the] change of address, not later than the [third] day after the change.” State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (omission and first, third, and fourth alterations in original) (citations and internal quotation marks omitted). Since defendant only argues that the State presented insufficient evidence that he changed his address, we limit our review accordingly.

In Abshire, our Supreme Court examined the definition of “address” as the term is used in N.C.G.S. §§ 14–208.9(a) and 14–208.11(a)(2) of the registration program, see id. at 329–32, 677 S.E.2d at 449–51, and concluded that “a sex offender's address indicates his or her residence, meaning the actual place of abode where he or she lives, whether permanent or temporary,” “so that law enforcement authorities and the general public know the whereabouts of sex offenders in our [S]tate.” Id. at 331, 677 S.E.2d at 451; see also id. (noting that “a person's residence is distinguishable from a person's domicile[; d]omicile is a legal term of art that denotes one's permanent, established home, whereas a person's residence may be only a temporary, although actual, place of abode” (citation and internal quotation marks omitted)). In other words, “the Supreme Court has concluded that the term address' as used in the sex offender registration statutes should be understood as describing or indicating the location where someone lives,” State v. Worley, 198 N.C.App. 329, 335, 679 S.E.2d 857, 862 (2009) (internal quotation marks omitted), “even if it is a homeless shelter, a location under a bridge or some similar place.” Id. at 338, 679 S.E.2d at 864. “Determining that a place is a person's residence suggests that certain activities of life occur at the particular location.” Abshire, 363 N.C. at 332, 677 S.E.2d at 451. “Beyond mere physical presence, activities possibly indicative of a person's place of residence are numerous and diverse, and there are a multitude of facts a jury might look to when answering whether a sex offender has changed his or her address.” Id.

In the present case, Ms. Wall testified that, beginning about a month or two after Ms. Teague moved into the upstairs garage apartment in Morehead City, during the latter half of 2009, defendant stayed at Ms. Teague's apartment every day and evening. Ms. Wall made the following observations:

First of all, I saw a duffle bag going up with him toting them. And then at night I'd grill out a whole lot in the summertime. They would come downstairs and...