Opinion
No. COA10-1009
Filed 21 June 2011 This case not for publication
Appeal by Defendant from Judgment entered 16 March 2010 by Judge Phyllis M. Gorham in New Hanover County Superior Court. Heard in the Court of Appeals 24 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Lisa G. Corbett, for the State. Greene Wilson, P.A., by Thomas Reston Wilson, for Defendant-appellant.
New Hanover County No. 09 CRS 057434.
Richard Lee Moore, Jr. ("Defendant") appeals from a jury verdict finding him guilty of failure to comply with the sex offender registration law. Defendant argues the trial court erred in denying his Motion to Dismiss for reason of insufficient evidence. We find no error.
I. Factual and Procedural History
Defendant was convicted on 12 July 2007 of the offense of indecent liberties with a child. After his release from prison in September 2008, he registered as a sex offender in Gaston County, where he lived with his parents. Upon registration, Defendant received and initialed a "duty to register" form, which stated that he "must appear in person and provide written notification of [his] address change to the sheriffs in the county where [he has] most recently registered. This in-person notification must be made to the county sheriff within ten days of the change." This form was outdated. As of July 2007 an amendment, 2007 N.C. Sess. 346, required that if sex offenders relocate to a different county, they must notify the new county of their change in address within ten days, in addition to notifying the county where they are currently registered. A December 2008 amendment, 2008 N.C. Sess. 430, shortened the allotted time in which an offender must notify the county of current registration from ten days to three business days.
Defendant's family was evicted from their Gaston County residence and on 5 June 2009, Defendant traveled to New Hanover County to be with his girlfriend, who was pregnant with his child. Initially he stayed with Chris Clark in New Hanover County.
Defendant was stopped by Officer Scott Hettinger in New Hanover County on 7 June 2009 for a traffic violation and provided Chris Clark's address in New Hanover County as his current residence. Defendant first falsely identified himself to Officer Hettinger by his brother's name. When Officer Hettinger asked for Defendant's wallet, he saw a North Carolina driver's license identifying Defendant by his actual name. Officer Hettinger then "ran his license" on the National Crime Information Center system and discovered that Defendant was a registered sex offender in Gaston County. Defendant stated that he arrived in New Hanover County in the last few days. Officer Hettinger informed Defendant that he needed to register his new address in New Hanover County with local law enforcement. Officer Hettinger testified that during this interaction Defendant acknowledged that he knew he had ten days to register his change of address in New Hanover County and asked where he could register.
After the traffic stop, Officer Hettinger informed Detective Macon, who was in charge of New Hanover County's sex offender registration system, of his encounter with Defendant. Detective Macon investigated Defendant's Gaston County address that was listed on the sex offender registry, and found that the residence had been abandoned. Detective Macon initiated a formal investigation of Defendant on 14 June 2009.
On 12 June 2009, Defendant moved to the town of Leland in Brunswick County to pursue a roofing job. There he stayed with a co-worker named Robert Maloy. Defendant worked from June 16 through June 19 in Raleigh on the roofing job and returned to Leland after finishing work on 19 June 2009.
On 20 June 2009, Defendant was arrested on unrelated charges in New Hanover County. He was released on 26 June 2009. On 30 June 2009, a warrant for his arrest was issued for failing to register his change of address pursuant to N.C. Gen. Stat. § 14-208.9, and he was arrested the same day. While detained, Defendant met with Detective Macon, and he told the detective that he visited his parents in Gaston County on June 12 and June 27. While in jail, Defendant also made a recorded call to his girlfriend explaining that he had lied to the detective and asked his girlfriend to remember the fabricated dates he provided to the detective.
On 17 August 2009, Defendant was indicted for "failure to register as a criminal offender or sexually violent offender" pursuant to N.C. Gen. Stat. §§ 14-208.9 and 14-208.11. Defendant was tried before a jury in the 15 March 2010 Criminal Sessions of Hanover County Superior Court, Judge Phyllis M. Gorham presiding. Defendant made a Motion to Dismiss at the end of the State's evidence and renewed the Motion at the close of all the evidence. In both instances the Motion was denied. The jury returned a guilty verdict and Defendant's Motion to Set Aside the Verdict was also denied. Defendant entered notice of appeal in open court. On 16 March 2010, Defendant received a sentence of 30 to 36 months imprisonment.
II. Jurisdiction and Standard of Review
This Court has jurisdiction to hear the appeal pursuant to N.C. Gen. Stat. § 7A-27(b) (2009). Denial of a motion to dismiss is a question of law and receives de novo review. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d. 615, 621 (2007). This Court, under a de novo standard of review, "considers the matter anew and freely substitutes its own judgment" for that of the trial court. State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quotation marks omitted). A defendant's motion to dismiss should be denied if "there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). This evidence must be viewed "in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State." State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). "The trial court in considering such motions is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight." Powell, 299 N.C. at 99, 261 S.E.2d at 117. "[C] ontradictions and discrepancies are for the jury to resolve and do not warrant dismissal." Id.
III. Analysis
On appeal, Defendant contends the trial court erred by denying his Motion to Dismiss the charge of failure to comply with the sex offender registration law for insufficient evidence. Specifically, Defendant argues that he did not surpass his allotted time to register his change of address since he was not in any location for longer than ten days. Defendant also argues that the State did not prove that his failure to register was willful. Lastly, Defendant contends that the trial court applied a mischaracterization of the law when it decided to deny his Motion to Dismiss by viewing the offense as a strict liability crime. We disagree.
The trial court examined whether pursuant to N.C. Gen. Stat. § 14-208.11(a)(7), Defendant "willfully . . . [f]ail[ed] to report in person to the sheriff's office as required by [N.C. Gen. Stat. § 14-208.9]," which states:
If a person required to register changes address, the person shall report in person and provide written notice of the new address not later than the third business day after the change to the sheriff of the county with whom the person had last registered. If the person moves to another county, the person shall also report in person to the sheriff of the new county and provide written notice of the person's address not later than the tenth day after the change of address. Upon receipt of the notice, the sheriff shall immediately forward this information to the Division.
N.C. Gen. Stat. § 14-208.9(a) (2009) (emphasis added). The addition of the ten-day requirement to notify law enforcement in the registrant's new county of residence was added to N.C. Gen. Stat. § 14-208.9 upon enactment of a July 2007 amendment. 2007 N.C. Sess. 346. Subsequently, a December 2008 amendment shortened the time to notify the sheriff in the county where the person had last registered from ten days to three business days. 2008 N.C. Sess. 430.
A. Defendant's Obligation to Report his Temporary Residence
First, Defendant argues he did not incur an obligation to report his change in residence because he was in no single location longer than ten days. We cannot agree.
Because Defendant was evicted from his Gaston County residence, he necessarily had a residence at some other location. Indeed, "the sex offender registration statutes operate on the premise that everyone does, at all times, have an 'address' of some sort, even if it is a homeless shelter, a location under a bridge or some similar place." State v. Worley, 198 N.C. App. 329, 338, 679 S.E.2d 857, 864 (2009). As we stated in Worley, there is never a time when a registered sex offender "lacks a reportable 'address'" under North Carolina sex offender registration statutes. Id.
Furthermore, our case law establishes that registered sex offenders must notify law enforcement of any change in residence, regardless of the duration of time spent at that location. State v. Abshire clearly delineates that a sex offender's residence is the "actual place of abode where he or she lives, whether permanent or temporary." 363 N.C. 322, 331, 677 S.E.2d 444, 451 (2009) (emphasis added) . Even a temporary home address must be registered so that the public and law enforcement can know the offender's location at all times per "'the twin aims' of the registration program [of] 'public safety and protection.'" Id. at 330, 677 S.E.2d at 450 (citation omitted). Thus, Defendant is mistaken in his insistence that he had no obligation to register his new address with local law enforcement because he stayed in temporary residences for less than ten days.
In Worley, this Court specifically addressed the present issue by concluding that if "drifters" who stayed at no single address for longer than ten days were not required to register these temporary addresses, this would "completely thwart the efforts of 'law enforcement agencies and the public [to know] the whereabouts of sex offenders and [to locate] them when necessary.'" Worley, 198 N.C. App. at 338, 679 S.E.2d at 864 (quoting Abshire, 363 N.C. at 330, 677 S.E.2d at 450) (alterations in original). Thus, Defendant's residence was at the address in New Hanover County where he lived at the time, even though it may have only been a temporary residence. Defendant had a duty to register the address with local law enforcement and his argument is dismissed.
B. Defendant's Willful Violation of Sex Offender Registration Statutes
Defendant next argues he did not willfully violate the relevant sex offender registration statutes because he was not aware of the current registration requirements. We disagree.
The North Carolina Supreme Court has clearly defined the standard for willfulness:
The word willful, used in a statute creating a criminal offense. . . . implies the doing [of] the act purposely and deliberately, indicating a purpose to do it, without authority ___ careless whether he has the right or not ___ in violation of law, and it is this which makes the criminal intent.
State v. Whitener, 93 N.C. 590, 592 (1885).
Defendant received actual notice of his duty to register in New Hanover County during his traffic stop on June 7. During the stop, Officer Hettinger clearly informed Defendant of his obligation to notify New Hanover County law enforcement of his change in residence within ten days. In his trial testimony, Officer Hettinger affirmed that Defendant acknowledged he was aware of his ten-day registration requirement and that Defendant asked where he could register in New Hanover County. As discussed above, sex offenders must register even temporary residences, regardless of the duration of their stay. Abshire, 363 N.C. at 331, 677 S.E.2d at 451 ("[A] sex offender's address indicates his or her residence, meaning the actual place of abode where he or she lives, whether permanent or temporary."). Thus, even though Defendant moved to Brunswick County on June 12, he was on actual notice of his obligation to register in New Hanover County as of June 7.
Defendant further argues that he could not have registered while arrested for unrelated charges between June 20 and June 26. The June 20 arrest, however, occurred thirteen days after he was informed of his need to notify New Hanover County law enforcement of his change in address. Because he was aware of his duty to register his change in address and had surpassed the ten day time-frame, Defendant was already willfully in violation of the relevant North Carolina statutes at the time of his June 20 arrest. Additionally, Defendant was released from jail on June 26, and was not arrested for failing to notify local law enforcement of his change in residence until June 30, allowing him even more time to comply with his notification requirements. Nevertheless, Defendant failed to register his change in residence.
Furthermore, when Defendant was interviewed by Detective Macon after his June 30 arrest, he lied about his whereabouts over the previous several weeks, stating that he had returned to Gaston County on June 12 and June 27 to visit his parents. During a recorded phone call to his girlfriend from the jail, Defendant acknowledged that he had lied to Detective Macon and asked his girlfriend to remember the fabricated dates he gave to Detective Macon. This communication indicates Defendant's awareness that he was in violation of sex offender registration statutes and underscores the willfulness of his violation. Therefore, Defendant's argument that his violation of N.C. Gen. Stat. § 14-208.11 was not willful is without merit.
Assuming arguendo that Defendant had not received notice of his duty to register his change of residence in New Hanover County, he still had a duty to register his change in address. Generally, "[t]he rule that 'ignorance of the law will not excuse' is deep in our law." Lambert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 243 (1957) (citation omitted). While the Supreme Court ultimately held in Lambert that "[w]here a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process," id. at 229-30, 78 S. Ct. at 243-44, in that case "circumstances which might move one to inquire as to the necessity of registration [were] completely lacking." Id. at 229, 78 S. Ct. at 243. Thus, Lambert created an exception to the general rule which protects completely passive conduct when a defendant has no reason to be aware of a change in relevant laws. The record, however, persuades us that in the present case Defendant cannot claim he had no reason to know of his duty to register.
In State v. Bryant, our Supreme Court concluded that where a sex offender, who was registered in South Carolina, moved to North Carolina and failed to register his change of residence in this state, he was in violation of N.C. Gen. Stat. § 14-208.11. 359 N.C. 554, 555-56, 614 S.E.2d. 479, 480 (2005). Although the defendant in Bryant claimed to be ignorant of his duty to register in North Carolina, the Court concluded that because he had actual notice of his lifelong duty to register and had actual notice of his duty to notify South Carolina law enforcement if he moved out of state, "circumstances [existed] that would move the reasonable individual to inquire of his duty to register." Id. at 568, 614 S.E.2d. at 488 ("[I]t is clear that the legal maxim ignorantia juris non excusat remains the general rule.").
In the present case, Defendant was aware of his general duty to register as a sex offender and knew that he had to register any change of address with North Carolina law enforcement. Consequently, as a registered sex offender, Defendant should have maintained current knowledge of his registration requirements. "Simply put, a convicted sex offender's failure to inquire into a state's laws on registration requirement is neither entirely innocent nor wholly passive." Id.
Although the registration instructions Defendant received upon his release from prison in September 2008 were outdated, the State presented substantial evidence that Defendant received actual notice of his duty to register on 7 June 2009 and willfully violated the relevant statutes. The State stipulated that the ten-day allotted time-frame for Defendant to register in New Hanover County could begin when he received actual notice of his requirements during his 7 June 2009 traffic stop. Even with this stipulation, Defendant had long surpassed the ten-day allotment at the time of his June 30 arrest. Defendant's argument is dismissed.
C. Trial Court's characterization of N.C. Gen. Stat. § 14-208.11(a)
Lastly, Defendant argues the trial court mischaracterized the law when denying his Motion to Dismiss. Defendant argues the trial court deemed Defendant's offense a strict liability offense rather than an offense requiring "willfulness." We conclude the trial court applied the correct standard.
Prior to 1 December 2006, failure to comply with sex offender registration requirements was a strict liability offense; however, on 1 December 2006 our state legislature amended section 14-208.11(a) to include a "willfulness" component. 2006 N.C. Sess. 1070; N.C. Gen. Stat. § 14-208.11(a) (2009) ("A person required by this Article to register who willfully does any of the following is guilty of a Class F felony. . . .").
When explaining its denial of Defendant's first Motion to Dismiss, the trial court cited State v. Abshire and insisted the offense lacked a "willfulness" component. (T. at 89.) Indeed, Abshire describes the violation of N.C. Gen. Stat. § 14-208.11(a) as a strict liability offense. 363 N.C. at 328, 677 S.E.2d at 449. The offense in Abshire occurred, however, before the 2006 amendment of section 14-208.11(a), id. at 326, 677 S.E.2d at 448, which added the requirement that failure to register must be willful.
In the present case, the offense occurred in 2009, after enactment of the 2006 amendment to section 14-208.11(a) . Thus, the State was required to prove Defendant's failure to register was willful. N.C. Gen. Stat. § 14-208.11(a) (2009). However, "[b]y introducing evidence, defendant waive[d] his motion to dismiss at the close of the State's evidence." State v. Elliot, 69 N.C. App. 89, 100, 316 S.E.2d 632, 640 (1984). Thus, we need not address Defendant's first Motion to Dismiss.
Later, when Defendant renewed his Motion at the close of all the evidence the record reveals the trial court addressed the issue of willfulness in denying the motion. (T. at 147.) Thus, the trial court applied the proper standard when denying Defendant's Motion to Dismiss.
IV. Conclusion
In summary, Defendant was required to notify local law enforcement of his change in address even though he resided at no specific address for longer than ten days. Defendant was in willful violation of the relevant sex offender registration statutes after being informed of his notification obligations on 7 June 2009. Lastly, the trial court did not apply a mischaracterization of the law in denying Defendant's Motion to Dismiss. There was substantial evidence before the trial court that Defendant failed to comply with the sex offender registration requirements of N.C. Gen. Stat. §§ 14-208.11(a) (7) and 14-208.9(a) when he did not register his change in address with local law enforcement. Accordingly, we find
No error.
Judges STROUD and THIGPEN concur.
Report per Rule 30(e).