State v. Osborne

• Decision Date: 01 July 2014
• Docket Number: No. COA13–1372.,COA13–1372.
• Citation: 763 S.E.2d 16 (Table)
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Tommy Lee OSBORNE.

763 S.E.2d 16 (Table)

STATE of North Carolina

v.Tommy Lee OSBORNE.

No. COA13–1372.

Court of Appeals of North Carolina.

July 1, 2014.

Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.

Farber Law Firm, P.L.L.C., by Sarah Jessica Farber, for Defendant.

STEPHENS, Judge.

Defendant Tommy Lee Osborne appeals from judgment entered after a jury found him guilty of failing to notify the sheriff's office when he moved to a new address. We vacate the judgment.

The evidence at trial tended to show that, in 1993, Defendant was convicted of an offense that required him to register as a sex offender. On 11 June 2010, Defendant moved from Forsyth County to Ashe County. Defendant provided a change of address form to the Ashe County Sheriff's Office (“ACSO”) indicating that his new address was 309 North Main Street in Jefferson.

The State Bureau of Investigation sends verification letters to sex offenders on the anniversary dates of their registration. Once a sex offender receives the notice, he has three days to take the notice to the sheriff's office to be signed. In November 2010, a verification letter was sent to Defendant, but was returned as undeliverable.

Upon being notified about the letter's return, ACSO Sergeant Randy Lewis went to 309 North Main Street looking for Defendant. Sgt. Lewis spoke with James Bingham, Defendant's brother-in-law. Bingham told Sgt. Lewis that Defendant had not lived at that address for “a few weeks.” Bingham said Defendant “had moved to a trailer down in east Jefferson” and provided Sgt. Lewis with directions to that location. Sgt. Lewis obtained a warrant for Defendant's arrest for failure to notify the ACSO of his new address, and on 29 November 2010, located Defendant living at the mobile home park described by Bingham.

On 14 March 2011, the Ashe County grand jury indicted Defendant.¹ On 10 July 2013, a jury found Defendant guilty of failing to notify the ACSO of his change in address as required by N .C. Gen.Stat. § 14–208.11(a)(2). Defendant then entered a no contest plea to having attained habitual felon status. The trial court imposed an active sentence of 58–79 months.

Defendant appeals, arguing that the trial court erred in denying his motion to dismiss when there was insufficient evidence to show that he had moved. We conclude that the indictment purporting to charge Defendant with violating section 14–208.11(a)(2) was fatally flawed. Accordingly, we vacate the judgment entered upon Defendant's conviction as well as Defendant's nolo contenderehabitual felon plea.

On appeal, neither party has raised any issue regarding the indictment. However,

[i]t 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. Lack of jurisdiction in the trial court due to a fatally defective indictment requires the appellate court to arrest judgment or vacate any order entered without authority. The issue of subject matter jurisdiction may be raised at any time, even for the first time on appeal. The subject matter jurisdiction of the trial court is a question of law, which this Court reviews de novoon appeal.

State v. Barnett,––– N.C.App. ––––, ––––, 733 S.E.2d 95, 97–98 (2012) (citations, internal quotation marks, some brackets, and ellipsis omitted). Further, “subject matter jurisdiction may not be waived, and this Court has not only the power, but the duty to address the trial court's subject matter jurisdiction on its own motion or ex mero motu.” Rinna v. Steven B.,201 N.C.App. 532, 537, 687 S.E.2d 496, 500 (2009) (citation omitted).

An indictment charging a felony must set forth:

A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.

N.C. Gen.Stat. § 15A–924(a)(5) (2013). The requirement is intended

(1) [to provide] such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial[;] and (4) to enable the court, on conviction or plea of nolo contendereor guilty[,] to pronounce sentence according to the rights of the case.

State v. Jones,––– N.C. ––––, ––––, 734 S.E.2d 617, 627–28 (2014) (citations and internal quotation marks omitted; some alterations in original).

In order to be valid and thus confer jurisdiction upon the trial court, an indictment charging a statutory offense must allege all of the essential elements of the offense. The indictment is sufficient if it charges the offense in a plain, intelligible and explicit manner. Indictments need only allege the ultimate facts constituting each element of the criminal offense and an indictment couched in the language of the statute is generally sufficient to charge the statutory offense. While an indictment should give a defendant sufficient notice of the charges against him, it should not be subjected to hyper technical scrutiny with respect to form. The general rule in this State and elsewhere is that an indictment for a statutory offense is sufficient, if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words.

Barnett,––– N.C.App. at ––––, 733 S.E.2d at 98 (citations, internal quotation marks, brackets, and ellipses omitted; emphasis added).

A person who is required to register as a sex offender commits a felony if he “[f]ails to notify the last registering sheriff of a change of address as required by this Article.” N.C. Gen.Stat. § 14–208.11(a)(2) (2013). In turn, section 14–208.9(a) provides that, “[i]f 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) (2013).² When read in pari materia,sections 14–208.11(a)(2) and 14–208.9(a) provide that a sex offender required to register his address with the sheriff who fails to notify the sheriff of a change of address in writing within three business days may be found guilty of a felony. State v. Holmes,149 N.C.App. 572, 576, 562 S.E.2d 26, 30 (2002). Thus, “[t]he three essential elements of the offense described in [section] 14–208.9 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.”Barnett,––– N.C.App. at ––––, 733...