State v. Wright
| Decision Date | 21 June 2022 |
| Docket Number | COA20-250 |
| Citation | 875 S.E.2d 552 |
| Parties | STATE of North Carolina v. Nicodemus WRIGHT, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Robert C. Ennis, for the State.
Daniel J. Dolan, for defendant-appellant.
¶ 1 An indictment must sufficiently allege all essential elements, or the facts underlying all essential elements, of an offense to put a defendant on notice as to the offense being charged in order to grant the trial court jurisdiction to hear a felony case. However, an indictment need not follow hyper-technical rules to be valid. Here, the trial court properly recognized the validity of the indictment, which sufficiently alleged the underlying facts essential for each element to apprise Defendant that he was charged with a failure to notify the last registering sheriff of a change of address.
¶ 2 Jury instructions are subject to plain error review when a defendant fails to preserve an alleged instructional error for appellate review, requiring a showing that the alleged error had a probable impact of the jury's verdict as opposed to a possible impact. Here, the trial court did not plainly err in instructing the jury regarding the State's burden of proof as it properly instructed that the State was required to prove all elements beyond a reasonable doubt. Additionally, the trial court did not plainly err in instructing the jury on the elements of failure to notify the last registering sheriff of a change of address, even assuming it erred by not indicating that there must be a willful failure to notify the sheriff's office of a change of address, because such an error would not have had a probable impact on the jury's verdict due to the clear, accurate statement of the mens rea requirement immediately prior to the assumed error.
¶ 3 A motion to dismiss for insufficiency of the evidence should be denied if, when viewing the evidence in the light most favorable to the State, there is substantial evidence of each essential element of the offense. Here, there was substantial evidence of each essential element of Defendant's failure to notify the last registering sheriff of a change of address and his attaining habitual felon status.
¶ 4 In non-capital cases, defendants have a statutory right to allocution when they assert that right prior to sentencing. Here, because the trial court denied Defendant his right to allocution after he clearly and repeatedly articulated his desire to exercise this right, we vacate the trial court's sentence and remand for a new sentencing hearing.
¶ 5 Finally, a petition for writ of certiorari is a discretionary writ that should only be allowed when the petition shows merit in the underlying issue. There can be no merit in an appeal regarding an underlying issue when the record does not show the order from which a defendant requests review was actually entered. An order is not considered entered where it has not been filed with the county clerk of court. Here, the civil judgment order for attorney fees for which Defendant seeks our review does not reflect that it was filed with the county clerk of court, and therefore there is no merit to the petition for writ of certiorari. We deny Defendant's petition for writ of certiorari and dismiss the portion of his appeal related to the civil judgment order for attorney fees.
¶ 6 Defendant Nicodemus Wright was convicted of second-degree rape in 2006. In November 2011, following his release from prison, he was required to enroll in the sex offender and public protection registry and required to inform his local sheriff's office of his address in accordance with N.C.G.S. § 14-208.7. In early July 2015, Defendant's registered address was a men's shelter in Raleigh; however, on 9 July 2015, Defendant was taken to a month-long drug treatment program in Goldsboro by his post-release supervisor. Defendant left this program after two days and did not return to the men's shelter. From 11 July 2015, when Defendant left the drug treatment program, until his eventual arrest on 4 August 2015, Defendant did not update his registered address. As a result, Defendant's registered address remained listed as the men's shelter in Raleigh, but he did not stay there at any point after he left the program.
¶ 7 Defendant's former girlfriend, Linda Burt, testified that Defendant began staying at her home two days after his departure from the program, kept his clothes and books at her home during this time period, and was staying with her at the time of his arrest.
¶ 8 Following the State's evidence, Defendant made motions to dismiss on the basis of the indictment being fatally defective and for insufficiency of the evidence. Specifically, Defendant alleged that the indictment failed to state explicitly that he was required to register as a sex offender and to notify the sheriff's office of a move within three days. The indictment read:
THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the [4 August] 2015, in Wake County, the defendant named above unlawfully, willfully and feloniously did violate the North Carolina Sex Offender and Public Protection Registration Program, by having been convicted in Wake County Superior Court on 18th day of September 2006 of Second[-]Degree Rape, a reportable offense and failing to notify the Sheriff of Wake County of a change of address as required by [N.C.G.S.] § 14-208.9. This act was done in violation of [N.C.G.S.] § 14-208.11(A)(2) [.]
The trial court denied the motions.
¶ 9 Defendant then presented evidence. Defendant testified that he understood his obligation to notify his local sheriff's office of any address change and he had consistently updated his address. Defendant testified on cross-examination that, in 2011, he had acknowledged his understanding of his obligations regarding the registry in writing. Additionally, Defendant testified that the Goldsboro program had registered him in Goldsboro and that he never lived with his girlfriend, instead claiming he stayed in Goldsboro until around 2 August 2015.
¶ 10 Defendant also called his post-release officer to testify. Defendant's post-release officer confirmed that a program officer had indicated that the program was going to notify the Wayne County Sheriff's Office of Defendant's change of address, but he was unaware if this actually occurred. Defendant renewed his motions to dismiss at the conclusion of all evidence, and the trial court again denied the motions. The trial court instructed the jury, and the jury found Defendant guilty of violating the sex offender and public protection registry.
¶ 11 Defendant was then tried for having attained habitual felon status. Two prior convictions for attempted robbery and attempted criminal sale of a controlled substance in the fifth degree from New York were used as the first two underlying felonies, with the third being his second-degree rape conviction in North Carolina. At the conclusion of the State's evidence, Defendant made a motion to dismiss, which the trial court denied. Defendant was found guilty of attaining habitual felon status, and the trial court proceeded to sentencing. At sentencing, the following exchange occurred:
¶ 12 On 18 September 2019, the trial court imposed an active sentence of 83 to 112 months. The criminal judgment provided for $0.00 in attorney fees. On 25 October 2019, a Non-Capital Criminal Case Trial Level Fee Application Order for Payment Judgment Against Indigent was signed by the trial court, purporting to approve a civil judgment for attorney fees in the amount of $3,562.50.
¶ 13 On appeal, Defendant argues (A) "[t]he judgment must be vacated because the indictment charging a violation of the sex offender and public protection registry fails to allege three essential elements, depriving the trial court of jurisdiction and violating [Defendant's] right to due process"; (B) "[Defendant] must receive a new trial because the trial court plainly erred by [(1)] failing to instruct the jury as to an element of an offense and [(2)] by misstating an element of an offense"; (C) "[t]he trial court erroneously denied [Defendant's] motion to dismiss the charge of a violation of the sex offender and public protection registry and the charge of attaining habitual felon status because there was not substantial evidence of either charge"; (D) "[t]his case must be remanded for a new sentencing hearing because the trial court deprived [Defendant] of his right to allocution"; and (E) "[t]he trial court erred by ordering [Defendant] to pay attorney[ ] fees and the attorney appointment fee without affording him notice and an opportunity to be heard."1
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