On discretionary review of a unanimous decision of the Court of Appeals, 239 N.C. App. 101 (2015), the court reversed, holding that the evidence was sufficient to sustain the defendant’s conviction to failing to register as a sex offender. Following Crockett (summarized immediately above), the court noted that G.S. 14-208.7(a) applies solely to a sex offender’s initial registration whereas G.S. 14-208.9(a) applies to instances in which an individual previously required to register changes his address from the address. Here, the evidence showed that the defendant failed to notify the Sheriff of a change in address after his release from incarceration imposed after his initial registration.

In this Wake County case, defendant appealed on several grounds after being convicted of violating the provisions of the sex offender registry and attaining habitual felon status. In 2015 defendant was residing at a homeless shelter in Raleigh, but in July of 2015 he was taken to a drug treatment program in Goldsboro. Defendant left the program after only two days, but did not update the address where he was residing with the local sheriff. Defendant was arrested in August of 2015, and indicted for violating the requirements of the sex offender registry.

At trial, defendant made motions to dismiss based in the indictment being defective and for insufficiency of the evidence presented. These motions were denied. During sentencing, the trial court did not allow defendant to get his papers in order to make a statement to the court; after a back-and-forth exchange, the court moved on without allowing defendant to make a statement. The trial court imposed a sentence in September of 2019, and defendant appealed.

Defendant argued that (1) the indictment failed to allege three essential elements of the sex offender registry violation; (2) the trial court erred by failing to instruct the jury as to an element of the offense and misstated an element of the defense; (3) the trial court improperly denied defendant’s motion to dismiss for lack of substantial evidence; (4) the trial court deprived defendant of his right to allocution; and (5) the trial court erred by ordering defendant to pay attorney fees.

The Court of Appeals examined issue (1) of the appeal by defining the three essential elements of the violation: (a) that defendant is a person who must register; (b) that defendant has changed addresses; and (c) that defendant failed to notify the last registering sheriff of the change within three business days. The court concluded that while the indictment could have been more explicit and precise, it was sufficient to support the trial court’s jurisdiction and was not subject to hyper-technical scrutiny.

Taking up issue (2) of the appeal, the court examined the jury instructions contested by defendant. In particular, the Court of Appeals reviewed the instructions regarding (a) whether they adequately put the burden of proof on the State to prove that defendant changed his address, and (b) whether they adequately directed the jury to determine whether the defendant willfully failed to report his change of address (rather than simply that he willfully changed his address). Regarding (a), the court found that the instructions were clear and showed that the standard was beyond a reasonable doubt through repeated portions of the instructions given to the jury. Considering (b), the court examined the language “willfully changed defendant’s address and failed to provide written notice of defendant’s new address” from the instruction given to the jury. When examined with the surrounding language of the instructions that more clearly connected the willfulness requirement with the failure to report, the Court of Appeals found that this language, even if erroneous, did not constitute error because it was not sufficiently prejudicial when considered with the entirety of the instruction.

When considering the existence of substantial evidence for issue (3), the court found testimony in the record showing defendant’s awareness of his obligation to update his address. Additionally, evidence in the record showed that defendant left the drug treatment facility after only two days, and did not return to his registered address, supporting willful failure to update his address with the sheriff. The court also examined the evidence supporting the felonies used to justify habitual felon status, and found sufficient evidence showing the felonies did not overlap and were all committed after defendant turned 18 years old.  

The Court of Appeals found that defendant’s issue (4) had merit; the trial court did not adequately allow defendant to address the court and deprived him of his right to allocution. During the exchange with the trial court, defendant repeatedly asked to get his papers. The trial court refused to allow this, but did not provide an opportunity for defendant to speak after the third time defendant referenced needing his papers. Because defendant was not clearly told he could speak without his papers, and the court did not inquire about defendant’s desire to speak without them, the trial court effectively refused to allow defendant to make a statement. Based upon this failure, the court vacated defendant’s sentence and remanded to the trial court for a new sentencing hearing.

Finally, the court denied the petition underlying issue (5), regarding the judgment for attorney fees, as no civil judgment was entered against defendant. An order for attorney fees appears in the record, but it does not appear to be filed with the Wake County Clerk of Court. As a result, the court dismissed this portion of defendant’s appeal.

In this sex offender registration case where the defendant was charged with failing to notify of an address change, there was sufficient evidence that the defendant changed his address. After the defendant registered in 2011, he was incarcerated and then released in 2013. The Supreme Court has clarified that while incarcerated, a registrant’s address is that of the facility or institution in which he is confined and that when he is released from incarceration, his address necessarily changes. The court rejected the defendant’s argument that his incarceration for only a month was not long enough to establish a new address at his place of confinement.

(1) The State presented sufficient evidence to support a conviction for failure to register as a sex offender. The court rejected the defendant’s argument that he was not required to register in connection with a 1994 indecent liberties conviction. The court took judicial notice of the fact that the defendant’s prison release date for that conviction was Sept. 24, 1995 but that he was not actually released until Jan. 24, 1999 because he was serving a consecutive term for crime against nature. Viewing the later date as the date of the defendant’s release from prison, the court held that the registration requirements were applicable to him because they took effect in January 1996 and applied to offenders then serving time for a reportable sexual offense. The court further held that because the defendant was a person required to register when the 2008 amendments to the sex offender registration statute took effect, those amendments applied to him as well. (2) Where there was no evidence that the defendant willfully gave an address he knew to be false, the evidence was insufficient to support a conviction for submitting information under false pretenses to the sex offender registry in violation of G.S. 14-208.9A(a)(1). The State’s theory of the case was that the defendant willfully made a false statement to an officer, stating that he continued to reside at his father’s residence. Citing prior case law, the court held that the statute only applies to providing false or misleading information on forms submitted pursuant to the sex offender law. Here, the defendant never filled out any verification form listing the address in question. It ruled: “An executed verification form is required before one can be charged with falsifying or forging the document.”

In a failing to register case there was sufficient evidence that the defendant changed his address from Burke to Wilkes County. Among other things, a witness testified that the defendant was at his ex-wife Joann’s home in Wilkes County all week, including the evenings. The court concluded: “the State presented substantial evidence that, although defendant may still have had his permanent, established home in Burke County, he had, at a minimum, a temporary home address in Wilkes County.” (quotation omitted). It explained:

[T]he evidence . . . showed that defendant still received mail, maintained a presence, and engaged in some “core necessities of daily living,” at his home in Burke County. However, the evidence also would allow a jury to reasonably conclude that he temporarily resided at Joann’s in Wilkes County. Specifically, [witnesses] testified that defendant was often at Joann’s all week. Furthermore, [a witness] testified that defendant engaged in activities that only someone living at Joann’s would do. Thus . . . the evidence supported a reasonable conclusion that not only did defendant maintain a permanent domicile in Burke County, but he also had a temporary residence or place of abode at Joann’s in Wilkes County. Although defendant may have considered the house in Burke County his “home,” . . . his subjective belief and even the fact that he was “in and out” of the Burke County house does not prevent him from having a second, temporary residence. (citations omitted).

(1) The court rejected the defendant’s argument that G.S. 14-208.11 (2011) (failure to notify of a change in address) is void for vagueness as applied to him. He argued that because he is homeless, a person of ordinary intelligence person could not know what “address” means in his case. The court noted that in State v. Abshire, 363 N.C. 322 (2009), the N.C. Supreme Court clearly and unambiguously defined the term “address” as used in the statute well before the defendant was released from prison. It further noted that in State v. Worley, 198 N.C. App. 329 (2009), it rejected the defendant’s argument that homeless sex offenders have no address for purposes of the registration statutes. It concluded:

Even assuming that the language of the statute is ambiguous, defendant had full notice of what was required of him, given the judicial gloss that the appellate courts have put on it. Certainly after Abshire and Worley, if not before, a person of reasonable intelligence would understand that a sex offender is required to inform the local sheriff’s office of the physical location where he resides within three business days of a change, even if that location changes from one bridge to another, or one couch to another. Although this obligation undoubtedly places a large burden on homeless sex offenders, it is clear that they bear such a burden under [G.S.] 14-208.9 and that under [G.S.] 14-208.11(a)(2) they may be punished for willfully failing to meet the obligation. Moreover, the fact that it may sometimes be difficult to discern when a homeless sex offender changes addresses does not make the statute unconstitutionally vague or relieve him of the obligation to inform the relevant sheriff’s office when he changes addresses.

(Citations omitted) (2) The evidence was sufficient to convict the defendant for failing to notify of a change in address. Conceding that the State presented evidence that he was not residing at his registered address, the defendant argued that the State failed to presented evidence of where he was actually residing. The court rejected this argument, reasoning that the State is not required to prove the defendant’s new address, only that he failed to register a change of address. It stated: “proof that [the] defendant was not living at his registered address is proof that his address had changed.”

The trial court erred by denying the defendant’s motion to dismiss the charge of failing to register as a sex offender by failing to verify his address. In order to be convicted for failure to return the verification form, a defendant must actually have received the form. In this case, the evidence was uncontroverted that the defendant never received the form.