State v. White

• Decision Date: 20 January 2004
• Docket Number: No. COA02-1641.,COA02-1641.
• Citation: 162 NC App. 183,590 S.E.2d 448
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Byron WHITE, Defendant.

590 S.E.2d 448

162 NC App. 183

STATE of North Carolina v. Byron WHITE, Defendant.

No. COA02-1641.

Court of Appeals of North Carolina.

January 20, 2004.

Attorney General Roy Cooper, by Assistant Attorney General Amy L. Yonowitz, for the State.

Duncan B. McCormick, Lillington, for the defendant-appellant.

GEER, Judge.

Defendant Byron White appeals from his conviction for failure to comply with the sex offender registration requirements set out in N.C. Gen.Stat. § 14-208.11 (2003). Defendant contends that the trial court erred in failing to instruct the jury that the State was required to prove defendant's knowledge of the requirements and that the trial court erred in failing to dismiss the charges as a violation of the constitutional prohibitions against ex post facto laws. Because (1) this Court already has held that the State is not required to prove knowledge under N.C. Gen.Stat. § 14-208.11; (2) that statute does not, as applied to defendant, violate due process; and (3) the United States Supreme Court has recently ruled, Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), that statutes such as N.C. Gen.Stat. § 14-208.11 are not impermissible ex post facto laws, we find no error.

In 1995, North Carolina enacted the Amy Jackson Law, N.C. Gen.Stat. § 14-208.5 (2003) et seq. ("Article 27A"), requiring individuals convicted of certain sex-related offenses to register their addresses and other information with law enforcement agencies. The stated purpose of the law is to curtail recidivism because "sex offenders often pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and ... protection of the public from sex offenders is of paramount governmental interest." N.C. Gen.Stat. § 14-208.5.

Article 27A applies to all offenders convicted on or after 1 January 1996 and to all prior offenders released from prison on or after that date. 1995 N.C. Sess. Laws ch. 545, § 3. Under N.C. Gen.Stat. § 14-208.7(a) (2003), "[a] person who is a State resident and who has a reportable conviction shall be required to maintain registration with the sheriff of the county where the person resides." North Carolina residents who are released from a penal institution must register with the sheriff of the county in which the offender resides "[w]ithin 10 days of release from a penal institution ...." N.C. Gen.Stat. § 14-208.7(a)(1). Registration must be maintained for ten years following release. N.C. Gen.Stat. § 14-208.7(a). Whenever a person required to register "changes address, the person shall provide written notice of the new address not later than the tenth 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) (2003).

Before a convicted sex offender is released from a North Carolina penal institution, an official of the institution must notify him or her of the duty to register in the county where the person intends to reside. N.C. Gen.Stat. § 14-208.8(a)(1) (2003). The person required to register must sign a statement to verify receipt of the information or, if the person refuses to sign, the official must certify that the person was notified of his or her duty to register. Id.

In addition, each year on the anniversary of the person's initial registration date, the Division of Criminal Information, which maintains a central registry, is required to send a letter to the registrant at the last reported address to verify his or her address. N.C. Gen.Stat. § 14-208.9A(1) (2003). If within ten days of receipt the registrant fails to sign and return the letter verifying his or her current address, the sheriff's department must make a reasonable attempt to determine whether the person is residing at the registered address. N.C. Gen.Stat. § 14-208.9A(4) (2003).

At present, a person who violates the registration requirements is guilty of a Class F felony. N.C. Gen.Stat. § 14-208.11 (2003). Until 1 April 1998, however, "[a] person ... who, knowingly and with the intent to violate the provisions of this Article, fail[ed] to register" was guilty of a Class 3 misdemeanor for a first conviction and a Class I felony for a subsequent conviction. N.C. Gen.Stat. § 14-208.11(a) (1996 Cum. Supp.).

Facts

In April 1996, defendant pled guilty to committing indecent liberties with a minor in 1995. He was sentenced to prison and released 19 March 1997. Defendant registered in New Hanover County on 21 March 1997, reporting his residence as an address in Wilmington. Detective Tim Karp of the New Hanover County Sheriff's Department testified he advised defendant at that time of the requirement that he notify the department within ten days of any address change and of the fact that failure to do so would constitute an offense for which he would be arrested.

On 26 April 1999, defendant provided the sheriff's department with notice of a change in his address. On 16 November 1999, the Division of Criminal Information sent a letter to defendant to verify his then current address. The sheriff's department subsequently received notification that defendant had not responded to the letter. Detective Karp recorded in department records that defendant's address was unknown and contacted defendant's probation officer.

On 14 March 2000, the sheriff's department was again notified that defendant had not responded to a letter seeking verification of his residence. Detective Karp again recorded defendant's address as being unknown. On 11 May 2001, defendant came to the sheriff's department to report a new address in Wilmington. Defendant was living at that address with his girlfriend, Shante Rowell. Ms. Rowell testified that defendant had told her that he was required to sign papers showing a change of address every time he moved. Ms. Rowell and defendant subsequently moved to another address and defendant notified the sheriff's department of his new address.

In April 2001, defendant's relationship with Ms. Rowell ended and he moved out of her home. He failed to report his new address to the sheriff's department. On 11 July 2001, Ms. Rowell called the sheriff's department to report that defendant was no longer living at her home and on 12 July 2001, Ms. Rowell signed an affidavit verifying that fact. On 2 August 2001, a warrant was issued for defendant's arrest.

Defendant was indicted on 1 April 2002 for violating N.C. Gen.Stat. § 14-208.11 by failing to notify the sheriff of his change of address. At trial, defendant's attorney moved to dismiss the charge on the grounds that the State had failed to prove "the necessary element of actual knowledge of the duty to register," that the statute violated state and federal constitutional guarantees of due process, and that the statute constituted an unconstitutional ex post facto law. The trial court denied the motion.

Defendant's attorney subsequently requested that the court instruct the jury that "[t]he State is required to prove as an element to the offense that the Defendant had actual knowledge of the duty to register." In response to this request, the trial judge stated that he believed (incorrectly) that an "actual knowledge" requirement was included in the pattern jury instruction and that he would give the pattern instruction. Following the court's reading of the jury instructions, counsel for defendant pointed out that there had been no instruction on knowledge. The trial court decided to abide by the pattern instruction as written.

During deliberations, the jury submitted the following question to the trial court: "Should the jury consider whether the defendant knew he needed to register a change of address within 10 days or other specified times?" The judge responded,

The answer to that is yes, and in determining what he knew, you may examine his conduct before and after his, you know, conviction. Remember the instruction I gave you on circumstantial evidence. Okay, does that answer your question?

When a juror asked the judge to repeat his answer, the judge responded, in pertinent part,

I said, yes, you may, you know, it's sort of hard to expect to convict somebody of a felony without him knowing what his responsibilities are. However, you may determine what he knew by the conduct that he exhibited ....

Following the jury's verdict of guilty, the trial court found as a mitigating factor that defendant was suffering from a mental condition that was insufficient to constitute a defense but significantly reduced his culpability for the offense. The court found no aggravating factors. Defendant was sentenced to 20 to 24 months in prison.

I

Although defendant acknowledges that N.C. Gen.Stat. § 14-208.11(a) does not expressly require the State to prove knowledge or intent, he argues that the General Assembly in fact intended such a requirement. Not only has this Court already held otherwise, the statute's legislative history also confirms that the legislature intended to create a strict liability offense.

N.C. Gen.Stat. § 14-208.11(a)(2) provides in pertinent part:

(a) A person required by this Article to register who does any of the following is guilty of a Class F felony:

....

(2) Fails to notify the last registering sheriff of a change of address.

Thus, the statute on its face does not include any mens rea requirement. Based on this language, this Court already has held that knowledge is not an element of the offense: "[W]e note that the statute has no requirement of knowledge or intent, so as to require that the State prove either defendant knew he was in violation of or intended to violate the statute when he failed to register his change of address." State v. Young, 140 N.C.App. 1, 8, 535 S.E.2d 380, 384 (2000), disc. review improvidently allowed, 354 N.C. 213, 552 S.E.2d 142 (2001). See also State v. Holmes, 149 N.C.App. 572, 577, 562 S.E.2d 26, 30 (2002)

("To meet its burden under § 14-208.11(a)(2), the State must prove that: 1) the defendant is a sex...