State v. Williams
| Decision Date | 05 August 2014 |
| Docket Number | No. COA13–1309.,COA13–1309. |
| Citation | 763 S.E.2d 926 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Ryan Matthew WILLIAMS, Defendant. |
Attorney General Roy Cooper, by Assistant Attorney General Lauren T. Earnhardt, for the State.
Ryan McKaig, for defendant-appellant.
Defendant Ryan Matthew Williams, a registered sex offender, appeals from a conviction under N.C. Gen.Stat. § 14–208.11 (2013) for failing to report a change of address to the sheriff's office. On appeal, defendant primarily contends that the date of the offense set forth in the indictment, which appeared to span five months, was too vague to support his conviction. However, in the absence of a specific date of offense, an indictment is fatally defective only if time is of the essence for the charged offense or if the defendant relied upon the date of the offense in presenting his defense. Because time is not of the essence for violations of N.C. Gen.Stat. § 14–208.11, and defendant cannot show that he was prejudiced in preparing his defense, we hold that defendant has not demonstrated that the indictment was defective.
The State's evidence tended to show the following facts. In 2001, defendant was convicted of taking indecent liberties with a minor and, upon being released from prison, he was required, pursuant to N .C. Gen.Stat. § 14–208.9(a) (2001), to register as a sex offender with the county sheriff and to notify the county sheriff of any address change. In 2009, defendant moved to Burke County and registered as a sex offender with the Burke County Sheriff's Office. On 17 February 2010, defendant's registered address was 109–D Ross Street in Morganton, North Carolina, while, on 5 April 2011, defendant's registered address was at 2022 Bristol Creek Avenue, the home of the mother of defendant's former girlfriend, Sunshine Blevins.
Sometime in June 2011, defendant moved out of the Bristol Creek Avenue home and informed the Sheriff's Office that he was now living at 107–D Ross Street. 109–D Ross Street and 107–D Ross Street are mobile home residences and are part of a 52–unit mobile home park operated by Tim Norman. Mr. Norman testified that defendant was in fact living at 109–D Ross Street during the summer of 2011. According to Mr. Norman, by July 2011, defendant had stopped paying rent at 109–D Ross Street and, in accordance with Mr. Norman's demands, defendant vacated the mobile home by the end of that month. Once defendant vacated the mobile home, Mr. Norman cleaned the mobile home and posted a “For Rent” sign in the yard listing his phone number. After that, Mr. Norman saw defendant several times in the mobile home park “hanging out” at 107–D Ross Street.
The last address defendant registered with the sheriff was 107–D Ross Street. On 8 September 2011, Deputy Chuck Fisher of the Burke County Sheriff's Office went to 107–D Ross Street to ask defendant to come into the Sheriff's Office for questioning on a matter apparently unrelated to his registration as a sex offender. Deputy Fisher received no response from knocking on the door at 107–D Ross Street. He testified that he noticed a “For Rent” sign in the yard with a phone number, and he had a conversation with Mr. Norman in which Mr. Norman explained that “ ‘[defendant had] been gone for a while’ “ now.
On 13 September 2011, defendant was located at another residence within Burke County. The residence was in someone else's name, but defendant admitted that he had been staying there. Defendant was indicted for failing to notify the Sheriff's Office of a change of address in violation of N.C. Gen.Stat. § 14–208.11(a)(2).
At trial, Sunshine Blevins testified on behalf of defendant. According to Ms. Blevins, defendant and she lived at 109–D Ross Street from February 2010 to April 2011. Ms. Blevins also testified that in April 2011, they moved in with her mother at her mother's home on Bristol Creek Avenue. Sometime in June 2011, defendant stopped living with Ms. Blevins and moved to 107–D Ross Street. After defendant moved into 107–D Ross Street, Ms. Blevins would see defendant there “[t]hree or four times a week” until he was arrested.
The jury found defendant guilty of failing to notify authorities of a change of address in violation of N.C. Gen.Stat. § 14–208.11(a)(2). The trial court sentenced defendant to a presumptive-range term of 23 to 28 months imprisonment, and defendant timely appealed to this Court.
Defendant first argues that his indictment was fatally defective contrary to N.C. Gen.Stat. § 15A–924 (2013) and violated his due process right to be properly informed of the charges against him. “We review the issue of insufficiency of an indictment under a de novostandard of review.” 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. Barnett,––– N.C.App. ––––, ––––, 733 S.E.2d 95, 98 (2012) (quoting State v. Bowen,139 N.C.App. 18, 27, 533 S.E.2d 248, 254 (2000) ). N.C. Gen.Stat. § 15A–924(a)(5) requires that a criminal indictment include
[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.
To satisfy N.C. Gen.Stat. § 15A–924, “an indictment need only allege the ultimate facts constituting the elements of the criminal offense[.]” State v. Blackmon,130 N.C.App. 692, 699, 507 S.E.2d 42, 46 (1998). We note that “[o]ur construction of [N.C. Gen.Stat. § 15A–924(a)(4) (1988) ] incorporates the rights afforded a criminal defendant under the United States Constitution.” State v.. McKinney,110 N.C.App. 365, 371, 430 S.E.2d 300, 303 (1993).
N.C. Gen.Stat. § 14–208.11(a)(2), the statute under which defendant was indicted, provides that a person who is required to register as a sex offender commits a felony if, among other acts, he “[f]ails to notify the last registering sheriff of a change of address as required by this Article.” This Court has explained that N.C. Gen.Stat. § 14–208.11(a)(2) “ ‘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] [f]ails to notify the last registering sheriff of [the] change of address, not later than the [third] day after the change.” ’ State v. Fox,216 N.C.App. 153, 156–57, 716 S.E.2d 261, 264–65 (2011) (footnote omitted) (quoting State v. Abshire,363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) ).
Defendant does not dispute that the indictment is sufficient with respect to each of the elements of N.C. Gen.Stat. § 14–208.11(a)(2), but instead challenges the date of offense specified in the indictment: “09/08/2011—after 4/2011.” At trial, the prosecutor explained that he did not intend to allege a range in time for the date of offense, but rather alleged a specific offense date of 8 September 2011 with the “4/2011” referring to the last date for which defendant had a registered address.
Nonetheless, even assuming that the indictment specified a date of offense consisting of a five-month range, defendant has failed to show that the indictment was fatally defective. N.C. Gen.Stat. § 15A–924(a)(4) (emphasis added) requires, with respect to the date of the offense, that an indictment include “[a] statement or cross reference in each count indicating that the offense charged was committed on, or on or about, a designated date, or during a designated period of time.” However, “[e]rror as to a date or its omission is not ground for dismissal of the charges or for reversal of a conviction if time was not of the essence with respect to the charge and the error or omission did not mislead the defendant to his prejudice.” Id.
Thus, N.C. Gen.Stat. § 15A–924(a)(4) “allows indictments to designate a ‘period of time’ during which ‘the offense charged was committed.’ “ State v. Abshire,192 N.C.App. 594, 597, 666 S.E .2d 657, 660 (2008) (quoting N.C. Gen.Stat. § 15A–924(a)(4) (2005) ), rev'd on other grounds,363 N.C. 322, 677 S.E.2d 444 (2009). Moreover, pursuant to N.C. Gen.Stat. § 15–155 (2013), “[n]o judgment upon any indictment for felony or misdemeanor ... shall be stayed or reversed ... for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly....” See also McKinney,110 N.C.App. at 370–71, 430 S.E.2d at 303 ().
Here, defendant contends that under N.C. Gen.Stat. § 14–208.11, “the timing of [the] offense is a specific element,” pointing to the requirement in N.C. Gen.Stat. § 14–208.9 (2013) that a registered sex offender notify the sheriff of any change in address “ ‘not later than the third business day after the change....’ “ (Quoting N.C. Gen.Stat. § 14–208.9(a).) Defendant then argues that the indictment was flawed because We disagree.
This Court has recognized that some aspect of “time” may be an element of a crime and yet the “date of the offense” need not be perfectly alleged in the indictment. For example, “[a]lthough nighttime is clearly ‘of the essence’ of the crime of burglary, an indictment for burglary is sufficient if it avers that the crime was committed in the nighttime.” State v. Mandina,91 N.C.App. 686, 690, 373 S.E.2d 155, 158 (1988). This Court held...
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State v. Williams
...appealed to the Court of Appeals, challenging the sufficiency of the indictment. State v. Williams, ––– N.C.App. ––––, 763 S.E.2d 926, 2014 WL 3824252 (2014) (unpublished). He argued that the indictment was fatally defective because it identified the date of offense as a five month span, an......