State v. James
| Decision Date | 07 July 2015 |
| Docket Number | No. COA15–21.,COA15–21. |
| Citation | 242 N.C.App. 188,774 S.E.2d 871 |
| Parties | STATE of North Carolina v. Richard Darnell JAMES, Defendant. |
| Court | North Carolina Court of Appeals |
Roy Cooper, Attorney General, by Kevin G. Mahoney, Assistant Attorney General, for the State.
William D. Spence, Kinston, for defendant-appellant.
Richard Darnell James ("Defendant") appeals from his convictions for failure to report a change of address as a sex offender and attaining the status of an habitual felon. On appeal, he contends that (1) his indictment was fatally flawed; (2) the trial court erred in denying his motion to dismiss; and (3) he received ineffective assistance of counsel. After careful review, we conclude that Defendant received a fair trial free from error and dismiss his appeal in part.
The State presented evidence at trial tending to establish the following facts: On 10 September 2001, Defendant was convicted of taking indecent liberties with a child in violation of N.C. Gen.Stat. § 14–202.1. As a result of this conviction, Defendant was required to register as a sex offender pursuant to N.C. Gen.Stat. § 14–208.7(a) with the sheriff of his county of residence. On 8 July 2013, Defendant notified the Johnston County Sheriff's Office of his change of address from 3521 Old School Road, Four Oaks, North Carolina to 2133 Mamie Road, Four Oaks, North Carolina.
On 29 November 2013, Defendant was discovered living in a vacant rental house located at a third address—2871 Old School Road. On that date, the owner of the rental house, Leroy Baker ("Baker"), and his son-in-law, Jesse Lee ("Lee"), had gone to the 2871 Old School Road address to check on the property after receiving an abnormally high electrical bill for the home. Upon entering the house, they discovered Defendant, whom neither of them knew or had ever seen before. Defendant told them that "he had just got out of jail and had no place to go" and that "he had been staying there." He further stated that he had been living there "about a month" since "he got out of jail the 30th of October." Baker and Lee ordered Defendant to leave. After Defendant left the residence, Lee discovered an identification card with Defendant's name on it. Lee subsequently contacted the Johnston County Sheriff's Office and informed officers of Defendant's unlawful entry into the rental home.
Captain Chris Strickland ("Captain Strickland") of the Johnston County Sheriff's Office, who oversaw the sex offender registry, reviewed the break-in report naming Defendant as the perpetrator of the offense. Recognizing Defendant as a convicted sex offender, Captain Strickland dispatched Lieutenant Gary Bridges ("Lieutenant Bridges") to Defendant's last reported address, 2133 Mamie Road, to investigate whether Defendant was, in fact, living there.
Upon arriving at a residence located at the 2133 Mamie Road address, Lieutenant Bridges encountered two individuals, Clinton Smith ("Smith") and Janet Mauney ("Mauney"). They informed Lieutenant Bridges that they had been living at that address for nine years and fourteen years, respectively, and that Defendant had never lived there.
On 3 February 2014, Defendant was indicted on the charge of failure to report a change of address as a sex offender in violation of N.C. Gen. Stat. § 14–208.11(a)(2) and having attained the status of an habitual felon. On 21 July 2014, a superseding indictment was issued for the former charge. A jury trial was held in Johnston County Superior Court on 25 August 2014 before the Honorable Claire V. Hill. Defendant moved to dismiss the charges against him at the close of the State's evidence and at the close of all the evidence. The trial court denied both of his motions.
On 26 August 2014, the jury found Defendant guilty of both charges. Defendant was sentenced to 90–120 months imprisonment. Defendant gave oral notice of appeal in open court.
Defendant first argues that the trial court lacked jurisdiction to enter judgment against him on the ground that the superseding indictment failed to allege all of the essential elements of the offense of failure to report a change of address as a sex offender, thereby requiring that his convictions be vacated. We disagree.
It is well settled that a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony. The purpose of the indictment is to give a defendant reasonable notice of the charge against him so that he may prepare for trial. A defendant can challenge the facial validity of an indictment at any time, and a conviction based on an invalid indictment must be vacated.
State v. Campbell, 368 N.C. 83, ––––, 772 S.E.2d 440, 443 (2015) (internal citations and quotation marks omitted). This Court reviews the sufficiency of an indictment de novo. State v. McKoy, 196 N.C.App. 650, 652, 675 S.E.2d 406, 409, appeal dismissed and disc. review denied, 363 N.C. 586, 683 S.E.2d 215 (2009).
The Supreme Court has also stated the following regarding the legal requirements applicable to indictments:
[W]e note that the "true and safe rule" for prosecutors in drawing indictments is to follow strictly the precise wording of the statute because a departure therefrom unnecessarily raises doubt as to the sufficiency of the allegations to vest the trial court with jurisdiction to try the offense. Nevertheless, it is not the function of an indictment to bind the hands of the State with technical rules of pleading; rather, its purposes are to identify clearly the crime being charged, thereby putting the accused on reasonable notice to defend against it and prepare for trial, and to protect the accused from being jeopardized by the State more than once for the same crime.... [A]n indictment shall not be quashed by reason of any informality or refinement if it accurately expresses the criminal charge in plain, intelligible, and explicit language sufficient to permit the court to render judgment upon conviction.... [I]t would not favor justice to allow defendant to escape merited punishment upon a minor matter of form.
State v. Sturdivant, 304 N.C. 293, 310–11, 283 S.E.2d 719, 731 (1981) (internal citations and quotation marks omitted); see also State v. Harris, 219 N.C.App. 590, 592, 724 S.E.2d 633, 636 (2012) .
As we stated in Harris, the mere fact that an indictment departs in some way from the strict statutory language is not determinative of the indictment's sufficiency. See Harris, 219 N.C.App. at 592–93, 724 S.E.2d at 636 .
N.C. Gen.Stat. § 14–208.9(a) (2013).
N.C. Gen.Stat. § 14–208.11(a)(2) (2013).
The three essential elements of this offense are "(1) the defendant is a person required to register; (2) the defendant changes his or her address; and (3) the defendant fails to notify the last registering sheriff of the change of address within three business days of the change." State v. Leaks, ––– N.C.App. ––––, ––––, 771 S.E.2d 795, 798 (2015).
In the present case, the superseding indictment lists the date of the offense as "December 2, 2013" and classifies the offense as being a violation of "14–208.11(A)(2)." It then states the following:
The jurors for the State upon their oath present that on or about the date of the offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did, as person [sic] required by Article 27A of Chapter 14 of the General Statutes to register, fail to notify the last registering sheriff of a change of address in that the defendant failed to appear in person and provide written notification of his address change to the sheriff of Johnston County within three (3) days of the address change.
While the superseding indictment generally tracks the language of N.C. Gen.Stat. § 14–208.9(a), Defendant challenges the portion of the indictment alleging that he failed to notify the sheriff of his change of address within "three (3) days" of the address change, arguing that the indictment was required to instead state the relevant time period as three business days. Because of this omission of the word "business" in referencing the three-day period, Defendant argues that the indictment was fatally flawed and therefore invalid.
In support of his position, Defendant relies on State v. Barnett, 223 N.C.App. 65, 733 S.E.2d 95 (2012). In Barnett, this Court held that an indictment for the failure of a sex offender to report an address change was insufficient to charge the defendant where "the indictment substantially track [ed] the statutory language set forth in N.C. Gen.Stat. § 14–208.9(a) with respect to the second and third elements of the...
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