State v. Pierce
| Decision Date | 16 December 2014 |
| Docket Number | No. COA14–574.,COA14–574. |
| Citation | 766 S.E.2d 854,238 N.C.App. 141 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Kelly Winton PIERCE. |
Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.
Brock & Meece, P.A., by C. Scott Holmes, Wilmington, for defendant.
Defendant appeals the judgment entered after he was convicted of failing to notify the sheriff's office of a change of address as a registered sex offender ("failure to notify") and pled guilty to attaining habitual felon status. On appeal, defendant only challenges the failure to notify conviction and argues that: (1) the indictment was fatally defective because it named the wrong sheriff's department where notification was required and failed to allege a "failure to report in person"; (2) the trial court erred in allowing the indictment be amended with regard to the dates of offense; and (3) the trial court erred in denying defendant's motion to dismiss because the State failed to provide substantial evidence that he resided in Wilkes County.
After careful review, we find no prejudicial error.
In 2009, defendant was convicted of four counts of indecent liberties with a child, an offense that required him to register as a sex offender. In November 2010, defendant registered as a sex offender in Burke County. Deputy Robin Jennings at the Burke County Sheriff's Office reviewed all the sex offender registration requirements with defendant, including the requirement that, if he moved to a different county, he would be required to appear in-person and provide written notice of the address change to both the sheriff in the county where he was most currently registered and the new sheriff. However, the State contends that defendant moved to Wilkes County during the summer of 2012 but failed to notify the Wilkes County Sheriff's Office that he had moved. Defendant denies it and claims that he still resided in Burke County throughout 2012 where he was properly registered. Both sides presented evidence at trial in support of their contentions.
Defendant's ex-wife, Marilyn Joann Long ("Joann"), lived in Wilkes County. At trial, Melissa Anderson ("Melissa"), who lived next door to Joann, testified on behalf of the State. Melissa claimed that, beginning in June 2012, she saw defendant at Joann's house "all week," "at least five days a week," and "every evening." Although she acknowledged that defendant would usually be gone on the weekends, he was "always there" during the week. Furthermore, she alleged that defendant did things around Joann's home "like a normal person living in a house" such as mowing the yard.
Joy Griffin ("Joy"), who lived in the trailer in front of Joann's, also testified at trial. She claimed that, in June, she saw defendant in her backyard with a headlight on his head. Joy alleged that defendant would be at Joann's two or three days, leave for a day, and then come back. He would be there all day and all night. Ultimately, in November 2012 after she found out that defendant was a registered sex offender, Joy called the Wilkes County Sheriff's Office and reported that defendant was living with Joann.
Defendant testified on his own behalf at trial and claimed that he never moved in with Joann. Although he conceded that he may have stayed with Joann two or three days in a row to help her with home improvement projects, he usually just drove back and forth between Morganton and Wilkesboro. Joann's testimony was similar to defendant's. She claimed that defendant travelled back and forth between Morganton and Wilkesboro to help her. According to Joann, although he may have spent one or two nights with her a week, "that was about the limit."
At trial, defendant produced several documents showing an address in Burke County, including his driver's license, an electricity bill from November 2012, his bank account statements, a wireless phone bill, car registration and tax bill, and his disability check. According to defendant, these documents showed that he still resided in Burke County.
Defendant also relied on the testimony of Earl Miller ("Earl"), his neighbor in Burke County, to support his claim that he never moved to Wilkes County. According to Earl, he helped defendant complete several projects around his mobile home, including installing a water pump and water heater. Earl claimed that he and his wife saw defendant every other day during 2012 and that defendant often ate dinner with him, sometimes five times a week.
On 7 November 2012, Lieutenant Whitley from the Wilkes County Sheriff's Office took the report from Joy that defendant was living with Joann. He and Sergeant Coles went to Joann's home to investigate. Defendant denied that he was living with Joann, claiming that he stays with her "from time to time." Based on their investigation and defendant's failure to register in Wilkes County, they arrested defendant for failure to notify the Wilkes County Sheriff's Office.
On 22 July 2013, defendant was indicted for failure to notify pursuant to N.C. Gen.Stat. §§ 14–208.11(a)(7) and 14–208.9(a). The date of offense was 7 November 2012. The indictment read as follows:
The jurors for the State upon their oath present that on or about the date(s) of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did as a person required by—Article 27A of Chapter 14 of the General Statutes to register as a sexual offender, moved from Morganton, North Carolina, which is Burke County, North Carolina to Wilkes County, North Carolina, thereby the defendant changed his address to Wilkes County, North Carolina, and the defendant failed to provide written notice within 10 days after his change of address to the last registering sheriff by failing to report his change of address to the Wilkes County Sheriff's Office as required by statute.
At trial, the court allowed the State to amend the date of offense from 7 November 2012 to June to November 2012. The jury found defendant guilty on 6 November 2013 of failing to notify the Wilkes County Sheriff's Office of his address change, and defendant pled guilty to attaining the status of being a habitual felon. The trial court sentenced defendant to a minimum term of 87 months to a maximum term of 117 months imprisonment. Defendant appeals.
Defendant first argues that the indictment was fatally defective because it failed to include all the essential elements of the offense. Specifically, defendant contends that the indictment was fatal in two respects. First, it failed to include the essential element that defendant "report in person" as required by sections 14–208.11(a)(7) and 14–208.9(a). Second, defendant argues that it improperly alleges a failure to notify "the last registering sheriff"; in contrast, defendant contends that it should allege that defendant failed to notify "the sheriff of the new county." We disagree; although the indictment improperly alleges that defendant failed to notify the "last registering sheriff" of his address change, the indictment's remaining language was sufficient to put defendant on notice that he was being indicted for failing to register his new address with the Wilkes County Sheriff's Office—the "new county sheriff."
This Court reviews the sufficiency of an indictment de novo. State v. Marshall, 188 N.C.App. 744, 748, 656 S.E.2d 709, 712 (2008). "The purpose of an indictment is to give a defendant notice of the crime for which he is being charged[.]" State v. Bowen, 139 N.C.App. 18, 24, 533 S.E.2d 248, 252 (2000).
Regarding its sufficiency, it is well-established that:
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.
State v. Barnett, ––– N.C.App. ––––, ––––, 733 S.E.2d 95, 98 (2012).
A person who is required to register as a sex offender commits a felony if he "[f]ails to report in person to the sheriff's office as required by G.S. 14–208.7, 14–208.9, and 14–208.9A." N.C. Gen.Stat. § 14–208.11(a)(7) (2013). In turn, section 14–208.9(a), the statute defendant was indicted for violating, sets out two basic sets of notification requirements for registered sex offenders. First, to the sheriff of the county with whom the person had last registered, i.e., the "last registering sheriff," the person must provide in-person and written notice of the new address "not later than the third business day after the change." Id. Second, if the person moves to a new county, he must also report in-person and provide written notice of his address within 10 days after the change in address to the sheriff of the new county, i.e., the "new county sheriff." Id.
Here, the indictment alleges that defendant violated section 14–208.9(a) by failing to provide 10 days of written notice of his change of address to "the last registering sheriff by failing to report his change of address to the Wilkes County Sheriff's Office as required by statute." As to defendant's first contention that the indictment was fatally defective for not alleging that defendant failed to give in-person notification to the Wilkes County Sheriff's Office, defendant has failed to show any defect in the indictment. Defendant is correct that a registered sex offender must provide both in-person notification and written notice of the new address. However, defendant was only prosecuted and convicted based on his failure to give 10 days of written notice, which, by itself, constitutes a violation of section 14–208.9(a). Thus, the indictment...
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