Opinion
No. COA10-1228
Filed 19 April 2011 This case not for publication
Appeal by defendant from judgment entered 1 April 2010 by Judge Theodore S. Royster, Jr., in Rowan County Superior Court. Heard in the Court of Appeals 9 March 2011.
Roy A. Cooper, Attorney General, by Assistant Attorney General Jacqueline M. Pérez, for the State. Jon W. Myers for defendant-appellant.
Rowan County, Nos. 06 CRS 50871, 3026.
Where defendant's request for former North Carolina Pattern Jury Instruction-Criminal 101.36 was made after the jury retired for deliberation, the trial court did not abuse its discretion in denying defendant's request. Where defendant failed to raise at trial the constitutional arguments he now raises on appeal to support his motion for continuance, his assignment of error is not properly preserved and is therefore dismissed.
Facts and Procedural History
On 7 September 1995, defendant Todd Wayne Worsham pled guilty to indecent liberties with a minor. This conviction required him to register as a sex offender. On 26 June 1996, defendant signed a form entitled "Duty of Notice to Register." The "Duty of Notice to Register" form instructed defendant that, due to the nature of his offense of indecent liberties with a minor, upon his release he had certain duties, which included:
1. Register with the sheriff of the county where the person resides within 10 days of release from a penal institution or arrival in a county to live outside a penal institution. (Registration shall be maintained for a period of 10 years following each conviction for a reportable offense). G.S. 14-208.7
2. "If 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." G.S. 14-208.9
3. "A person required by this Article to register who, knowingly and with the intent to violate the provisions of this Article, fails to register shall be guilty of a Class 3 misdemeanor for a first conviction of a violation of this Article, and a Class I felony for subsequent conviction of a violation of this article." G.S. 14-208.11
Defendant subsequently signed an acknowledgement form entitled "Requirements for Sex Offender and Public Protection Registration" on 27 April 2001. The acknowledgement form again set forth the registration time frames. It also notified defendant that failure to comply with one or more of the requirements may result in defendant being charged with a Class F Felony. The change of offender's address section of the acknowledgement form is substantially the same as the 1996 "Duty of Notice to Register" form.
On 19 August 2004, defendant signed an address verification letter, which indicated defendant's address to be 5225 Long Ferry Road, Salisbury, North Carolina. This letter also notified defendant that failure to return the completed letter or writing down false information on the letter was punishable as a Class F felony.
On 19 October 2005, defendant was arrested for driving while license revoked and unauthorized use of a motor vehicle. While still in jail, defendant again verified that his address was on Long Ferry Road. After his December 2005 release from jail, defendant was unable to move back into the Long Ferry Road residence due to restraining orders that had been taken out against him by his fiancée. Thereafter, defendant began living with friends at 1060 Claires Place in Rockwell, North Carolina. Defendant did not report this new residence to the Sheriff's Department.
On 30 January 2006, the police were called to investigate an incident at the Claires Place residence. The home owners turned over some of defendant's belongings, including a prescription bottle in defendant's name. The prescription had been filled on 20 January 2006 and listed the Claires Place address as defendant's residence.
Deputy Ewart with the Rowan County Sheriff's Department began the task of verifying defendant's whereabouts. The Claires Place residents told Deputy Ewart that defendant had been living there for approximately six weeks, but did not know where defendant was at the present time. Deputy Ewart then attempted to locate defendant at the Long Ferry Road residence, but was unsuccessful. On 2 February 2006, a warrant was issued for defendant's arrest for failure to register as a sex offender.
On 5 April 2006, two indictments were returned against defendant for Failure to Register as a Sex Offender and for Attaining Habitual Felon Status. Defendant had two prior convictions for felonious larceny dated January 1991 and May 1992 respectively.
On 26 March 2010, a Friday, the State provided defendant with 103 pages of supplemental discovery. Defendant's proceedings began the following Monday, 29 March 2010. On 29 March 2010, the trial court heard pre-trial motions outside the presence of the jury. Defendant asked for a continuance based on the new discovery materials. Defendant's motion for continuance was denied. On 30 March 2010, the trial on the sex offender registry charge began. Prior to the jury entering the courtroom, defendant again addressed the court about a lack of time to prepare his case. Defendant was convicted of Felony Failure to Change Address for Sex Offender Registry on 31 March 2010.
The following day, defendant was tried on the charge of attaining Habitual Felon Status. During deliberations, the jury asked the court "Can we give mercy in our judgment?" In response, the court read to the jury North Carolina Pattern Jury Instruction-Criminal 150.12, as follows:
Now, members of the jury, you heard the evidence and the arguments of attorneys. It is your duty to consider all of the evidence, all contentions arising from that evidence and the arguments and positions of the attorneys. You must weigh all of these in light of your common sense and determine the truth of the matter. You are to perform this duty fairly and objectively, and without bias, sympathy or partiality toward any party.
Defendant asked for North Carolina Pattern Jury Instruction-Criminal 101.36, which states:
The highest aim of every legal contest is the ascertainment of the truth. Somewhere within the facts of every case, the truth abides, and where truth is, justice steps in garbed in its robes and tips the scales. In this case you have no friend to reward, you have no enemy to punish; you have no anger to appease or sorrow to assuage. Yours is a solemn duty to let your verdict speak the everlasting truth.
The trial court, noting that North Carolina Pattern Jury Instruction-Criminal 101.36 had been deleted as of June 2008, denied defendant's request. Defendant was thereafter convicted of attaining Habitual Felon Status and sentenced to a minimum term of 116 months and maximum term of 149 months. Defendant appeals.
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On appeal, defendant advances two issues: (I) whether the trial court erred by denying defendant's request for a jury instruction regarding the highest aim of every legal contest; and (II) whether the trial court erred by denying defendant's motion to continue when new discovery materials were recently received.
I
In his first argument, defendant contends that the trial court erred in denying his request for a jury instruction regarding the highest aim of every legal contest when the requested instruction was correct in law and substance. We disagree.
In North Carolina, a trial judge is not required to follow any particular form in giving instructions and has wide discretion in presenting the issues to the jury. A judge is not required to state, summarize, or recapitulate the evidence, or to explain the application of the law to the evidence, although he may elect to do so in his discretion. A trial judge must, however, charge every essential element of the offense.
State v. Wallace, 104 N.C. App. 498, 504, 410 S.E.2d 226, 230 (1991) (citations omitted). Where the requested instruction is a general statement regarding the jury's duties rather than an instruction on the law, we review "only for abuse of discretion. Abuse of discretion means `manifestly unsupported by reason or . . . so arbitrary that it could not have been the result of a reasoned decision.'" State v. Bagley, 183 N.C. App. 514, 524, 644 S.E.2d 615, 622 (2007) (citations omitted)
Defendant relies on North Carolina General Statute § 15A-1231, which provides: "[a]t the close of the evidence or at an earlier time directed by the judge, any party may tender written instructions. A party tendering instructions must furnish copies to the other parties at the time he tenders them to the judge." N.C. Gen. Stat. § 15A-1231(a) (2009). However, the statute continues:
Before the arguments to the jury, the judge must hold a recorded conference on instructions out of the presence of the jury. At the conference the judge must inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will charge the jury and must inform them of what, if any, parts of tendered instructions will be given. A party is also entitled to be informed, upon request, whether the judge intends to include other particular instructions in his charge to the jury.
N.C.G.S. § 15A-1231(b) (2009).
Defendant offered his written jury instructions after the close of oral arguments by counsel, after the jury had been given initial instructions, after the jury had begun deliberations, and after the jury had asked a question regarding their ability to give mercy in judgment. Therefore, North Carolina General Statute § 15A-1231 is inapplicable to this issue.
This issue is properly resolved by North Carolina General Statute § 15A-1234. This statute provides:
After the jury retires for deliberation, the judge may give appropriate additional instructions to: (1) Respond to an inquiry of the jury made in open court; or (2) Correct or withdraw an erroneous instruction; or (3) Clarify an ambiguous instruction; or (4) Instruct the jury on a point of law which should have been covered in the original instructions.
N.C.G.S. § 15A-1234(a) (2009) (emphasis added). After the jury retires to deliberate, the statute gives discretion, not a mandate, to the trial judge who may or may not supplement jury instructions if the jury has a question. Id. The statute further provides: "Before the judge gives additional instructions, he must inform the parties generally of the instructions he intends to give and afford them an opportunity to be heard." N.C.G.S. § 15A-1234(c) (2010). The trial court heard oral arguments by counsel before ultimately deciding to read North Carolina Pattern Jury Instruction-Criminal 150.12 to the jury and declining to instruct the jury as to North Carolina Pattern Jury Instruction-Criminal 101.36, which had been deleted almost two years previously. The trial court was within its discretion pursuant to N.C. Gen. Stat. § 15A-1234 to reject defendant's request for additional jury instructions.
Defendant further contends that "when a defendant requests a special instruction which is correct in law and supported by the evidence, the trial court must give the requested instruction, at least in substance."
The North Carolina Supreme Court has held that North Carolina Pattern Jury Instruction-Criminal 101.36 does not have to be in a jury charge.
The defendant next argues that it was error for the court not to give [North Carolina Pattern Jury Instruction-Criminal 101.36] . . . The defendant argues that when a party requests an instruction that is supported by the evidence, the court must give the jury at least the substance of the instruction. He does not say what evidence supported this requested instruction. It is a general statement as to the jury's duties. It is not necessary to include it in a jury charge. This assignment of error is overruled.
State v. Beamer, 339 N.C. 477, 483, 451 S.E.2d 190, 193-4 (1994) (internal citations omitted). Likewise, here defendant points to no evidence that would support giving the jury this instruction. As our Supreme Court stated in Beamer, defendant's requested instruction "is a general statement as to the jury's duties. . . . [and] not necessary to include it in a jury charge." Id.
See also State v. Valdez, No. COA08-820, 2009 N.C. App. LEXIS 501, at 9 (N.C. Ct. App. May, 5 2009) ("Defendant next argues that it was error for the trial court to omit the following jury instruction [North Carolina Pattern Jury Instruction-Criminal 101.36]. . . . Beamer controls this case").
The trial court did not abuse its discretion in rejecting defendant's request that North Carolina Pattern Jury Instruction-Criminal 101.36 be read to the jury. Accordingly, defendant's assignment of error is overruled.
II
In his next argument, defendant contends that the trial court erred by denying his motion to continue when new discovery materials were received just prior to trial. The crux of defendant's argument is that his Due Process rights under the Fifth and Fourteenth Amendments to the United States Constitution, and under the North Carolina Constitution, and his Sixth Amendment right to confrontation under the United States Constitution, and under the North Carolina Constitution, were violated when his motion for continuance was not granted.
North Carolina Rule of Appellate Procedure 10(a) provides:
In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.
N.C. R. App. P. 10(a) (2009). This Court has consistently stated that "[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." State v. Sloan, 180 N.C. App. 527, 531, 638 S.E.2d 36, 39 (2006) (citing State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001)).
In arguing the motion for continuance, defendant's counsel stated to that court that: "I have not had the opportunity to copy the discovery and allow him [defendant] to review it, and that would be the basis of our motion to continue, Your Honor." At the close of oral argument on the motion, defense counsel stated: "Your Honor, again, just out of an abundance of caution, we would just ask a very short continuance." Further, when the defendant himself addressed the trial court he stated: "I was given — I was presented with 103 new pages of discovery Sunday afternoon. They were actually just given to me last night. I mean, I haven't had sufficient time to review those."
Neither defendant nor his counsel alleged a constitutional basis as grounds for granting the motion to continue. Because defendant failed to make a constitutional argument in support of his motion to continue, and pursuant to North Carolina Rule of Appellate Procedure 10(a), this issue has not been preserved for appellate review.
Even assuming arguendo defendant's appeal of this issue was properly before us, e.g. as a statutory violation, we would nevertheless affirm the trial court. The record indicates that the supplemental discovery given to defendant the weekend before trial was a compilation of defendant's sex offender file dating back to the 1990s, and the original documents pertaining to his eligibility to register. This is information that was presumably available to and within defendant's knowledge. Further, defendant has not argued prejudice, only stating: "Neither party had adequate time to review and prepare." Where defendant has not argued prejudice and where we discern no prejudice from the record, defendant's contentions, were they properly before us for review, would be overruled. However, as defendant's issue has not been properly preserved, this issue is hereby dismissed.
No error in part. Dismissed in part.
Judges ELMORE and GEER concur.
Report per rule 30(e).