State v. Reynolds , 253 N.C. App. 359 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-149
Filed: 2 May 2017
Surry County, No. 15CRS000692-94
STATE OF NORTH CAROLINA
v.
JOE ROBERT REYNOLDS, Defendant
Appeal by defendant from judgment entered on or about 5 November 2015 by
Judge William D. Albright in Superior Court, Surry County. Heard in the Court of
Appeals 8 August 2016.
Attorney General Joshua H. Stein, by Assistant Attorney General William P.
Hart, Jr., for the State.
Amanda S. Zimmer, for defendant-appellant.
STROUD, Judge.
Defendant appeals judgment from two convictions arising out of his failure to
inform the sheriff’s office of his address after being released on parole and one
conviction for attaining the status of habitual felon. For the following reasons, we
vacate one of defendant’s convictions on the basis of double jeopardy, find no error on
the other issues raised, and remand for resentencing.
I. Background
The general background of this case was stated in State v. Reynolds,
ST. V. REYNOLDS
Opinion of the Court
On or about 22 July 2013, defendant was indicted for
failing to register as a sex offender. Thereafter, on or about
7 October 2013, defendant was indicted for attaining the
status of habitual felon. During defendant’s trial, two
witnesses testified on behalf of the State. The first witness
was defendant’s supervising parole officer who testified
that though defendant had on more than one occasion
previously registered as a sex offender within three
business days as required by law, defendant eventually
refused to register after he was released from incarceration
after a parole violation, stating that he was already
registered and nothing had changed. The second witness
was a detective with the Surry County Sheriff’s Office who
testified that he went to a magistrate for an arrest warrant
due to defendant’s failure to register within three business
days of being released from incarceration, although he too
noted defendant had previously registered.
___ N.C. App. ___, 775 S.E.2d 695, slip op. at 1-2. (No. COA14-1019) (June 16, 2015)
(unpublished) (“Reynolds I”). In Reynolds I, this Court vacated defendant’s
convictions concluding North Carolina General Statute § 14-208.11(a)(1) “logically
applies only to individuals who are registering for the first time and not to defendant,
who was already registered.” See id. at 4.
Thereafter, in August of 2015, defendant was again indicted for failure to
report a new address as a sex offender and failure to report in person as a sex
offender, both on the same offense date as in Reynolds I, but under North Carolina
General Statute § 14-208.11(a)(2) and (a)(7). Defendant was also indicted for
attaining the status of habitual felon. After a trial, the jury found defendant guilty
on all counts, and the trial court entered judgment. Defendant appeals.
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Opinion of the Court
II. Double Jeopardy
Defendant was convicted of two separate crimes arising from his failure to
register his change of address, one pursuant to North Carolina General Statute § 14-
208.11(a)(2) and one pursuant to North Carolina General Statute § 14-208.11(a)(7).
North Carolina General Statute § 14-208.11(a) provides in pertinent part:
(a) A person required by this Article to register
who willfully does any of the following is guilty of a Class
F felony:
....
(2) Fails to notify the last registering sheriff of a
change of address as required by this Article.
....
(7) Fails to report in person to the sheriff's office
as required by G.S. 14-208.7, 14-208.9, and
14-208.9A.
N.C. Gen. Stat. § 14-208.11(a) (2013).
North Carolina General Statute § 14-208.11(a)(7) refers to three other statutes
which address registration in different situations, but only one, § 14-208.9, is
applicable in this situation.1 Thus here, the State was required to prove that
defendant failed to register as required by North Carolina General Statute § 14-208.9.
1 North Carolina General Statute § 14-208.7 is not applicable here because it applies to “the
initial registration[.]” State v. Crockett, 368 N.C. 717, 722, 782 S.E.2d 878, 882 (2016) (“We now hold
that N.C.G.S. § 14–208.9, the change of address statute, and not section 14–208.7, the registration
statute, governs the situation when, as here, a sex offender who has already complied with the initial
registration requirements is later incarcerated and then released.”). North Carolina General Statute
§ 14-208.9A is not applicable here either since that statute specifically deals with verification of
registration. See N.C. Gen. Stat. § 14-208.9A (2013).
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ST. V. REYNOLDS
Opinion of the Court
North Carolina General Statute § 14-208.9(a) provides in pertinent part:
(a) 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.
N.C. Gen. Stat. § 14-208.9(a) (2013) (emphasis added).
With this background in mind, we turn to defendant’s double jeopardy
argument. Defendant contends that the trial court violated his constitutional
protection against double jeopardy by entering judgment for convictions under both
North Carolina General Statute § 14-208.11(a)(2) and (a)(7). “The standard of review
for this issue is de novo, as the trial court made a legal conclusion regarding the
defendant’s exposure to double jeopardy.” State v. Fox, 216 N.C. App. 144, 147, 721
S.E.2d 673, 675 (2011) (citation and quotation marks omitted). “[T]he applicable test
to determine whether double jeopardy attaches in a single prosecution is whether
each statute requires proof of a fact which the others do not.” State v. Mulder, 233
N.C. App. 82, 89, 755 S.E.2d 98, 102 (2014) (citation, quotation marks, and brackets
omitted).
Turning back to the statute under which defendant was convicted:
(a) A person required by this Article to register who
willfully does any of the following is guilty of a Class F
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ST. V. REYNOLDS
Opinion of the Court
felony:
....
(2) Fails to notify the last registering sheriff of a
change of address as required by this Article.
....
(7) Fails to report in person to the sheriff’s office
as required by G.S. 14-208.7, 14-208.9, and
14-208.9A.
N.C. Gen. Stat. § 14-208.11(a). Our Court has already plainly stated that “[a]
conviction for violating N.C. Gen. Stat. §§ 14–208.9(a) and 14–208.11(a)(2) requires
proof beyond a reasonable doubt that: (1) the defendant is a person required to
register; (2) the defendant changes his or her address; and (3) the defendant fails to
notify the last registering sheriff of the change of address [.]” See State v. Worley, 198
N.C. App. 329, 334, 679 S.E.2d 857, 861 (2009) (emphasis added) (citations, quotation
marks, ellipses, and brackets omitted). As to the elements of North Carolina General
Statute § 14-208.11(a)(7), we have already established that in this particular case
North Carolina General Statute § 14-208.11(a)(7) is controlled by the elements in
North Carolina General Statute § 14-208.9 because the other two statutes noted in
(a)(7) regarding initial registration and verification of registration are not applicable
here. See N.C. Gen. Stat. § 14-208.11(a)(7); see also N.C. Gen. Stat. § 14-208.9A;
Crockett, 368 N.C. at 722, 782 S.E.2d at 882. Worley clearly states that “N.C. Gen.
Stat. §§ 14–208.9(a) and 14–208.11(a)(2)” have the exact same elements. See Worley,
198 N.C. App. at 334, 679 S.E.2d at 861. Thus, in this particular instance both § 14-
208.11(a)(2) and (a)(7) required defendant to inform the sheriff of his change of
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ST. V. REYNOLDS
Opinion of the Court
address pursuant to the requirements in § 14-208.9(a). See N.C. Gen. Stat. § 14-
208.11(a)(2) and (7); Worley, 198 N.C. App. at 334, 679 S.E.2d at 861.
The State attempts to distinguish the elements of North Carolina General
Statute § 14-208.11(a)(2) and (7) by arguing
the trial court’s charge of failing to notify the last
registering sheriff of a change of address was based upon
Defendant’s failure to provide written notice to the sheriff
only . . .; on the other hand, the charge of failing to report
in person as required by N.C. Gen. Stat. § 14-208.92 was
based upon Defendant’s failure to report in person for the
purpose of providing the written notification.
But the State’s attempted distinction between (a)(2) and (a)(7) is eliminated by North
Carolina General Statute § 14-208.9, which applies equally to both subsections. See
N.C. Gen. Stat. § 14-208.11(a)(2) and (7); Worley, 198 N.C. App. at 334, 679 S.E.2d at
861. North Carolina General Statute § 14-208.9 requires a registrant to “report in
person and provide written notice of the new address[,]” N.C. Gen. Stat. § 14-208.9(emphasis added), and this language is applicable to both § 14-208.11(a)(2) and (a)(7).
See State v. Holmes, 149 N.C. App. 572, 576, 562 S.E.2d 26, 30 (2002) (“N.C.G.S. §
14–208.9 and the statute in question, § 14–208.11, are both within Article 27A, which
defines the sex offender and public protection registration programs. Because they
deal with the same subject matter, they must be construed in pari materia to give
2 To be clear, defendant was not indicted under North Carolina General Statute § 14-208.9;
the State charged defendant under § 14-208.11(a)(7) but that statute incorporates the requirements of
§ 14-208.9 in this case.
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ST. V. REYNOLDS
Opinion of the Court
effect to each.”) Because in this case North Carolina General Statute § 14-
208.11(a)(2) and (a)(7) have the same elements, one of defendant’s convictions must
be vacated for violation of double jeopardy. See generally State v. Dye, 139 N.C. App.
148, 153, 532 S.E.2d 574, 578 (2000) (“Under the circumstances of the instant case,
therefore, the Double Jeopardy Clause constituted a bar to defendant’s subsequent
prosecution upon the domestic criminal trespass charge, and her conviction must be
vacated[.]” (citation omitted)).
Furthermore, to the extent the State argues the legislature intended North
Carolina General Statute § 14-208.11(a)(2) and (a)(7) to be punished separately, we
disagree. The entirety of the State’s argument focuses upon “the express duty of
registered offenders to report in person” versus “the purpose of requiring written
notice[,]” but again, in this case both North Carolina General Statute § 14-
208.11(a)(2) and (a)(7) required defendant to “report in person and provide written
notice of the new address” pursuant to North Carolina General Statute § 14-208.9.
N.C. Gen. Stat. § 14-208.9 (emphasis added). There is simply no legal or practical
difference between the two subsections as applied here. Therefore, we vacate one of
defendant’s convictions under North Carolina General Statute § 14-208.11 and
remand for defendant to be resentenced on the remaining conviction.
III. Motion to Dismiss
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ST. V. REYNOLDS
Opinion of the Court
Defendant also contends that “the trial court erred in denying . . . [his] motion
to dismiss when the State failed to present sufficient evidence that . . . [he] had
changed his address.” (Original in all caps.) Defendant contends that “[t]he
undisputed evidence showed that . . . [he] initially registered in September 2011 with
an address of . . . Shoals Road. . . . He was incarcerated at times following that
registration, but always returned to the same address.” Thus, the only element
defendant challenges is whether his address had changed.
When ruling on a motion to dismiss for insufficient
evidence, the trial court must consider the record evidence
in the light most favorable to the State, drawing all
reasonable inferences in the State’s favor. The State is
entitled to every reasonable intendment and inference to
be drawn from the evidence, and any contradictions and
discrepancies are to be resolved in favor of the State. The
only issue before the trial court in such instances is
whether there is substantial evidence of each essential
element of the offense charged and of the defendant being
the perpetrator of the offense. Substantial evidence is
relevant evidence that a reasonable mind might accept as
adequate to support a conclusion. As long as the evidence
permits a reasonable inference of the defendant’s guilt, a
motion to dismiss is properly denied even though the
evidence also permits a reasonable inference of the
defendant’s innocence.
Worley, 198 N.C. App. at 333, 679 S.E.2d at 861 (citations and quotation marks
omitted).
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ST. V. REYNOLDS
Opinion of the Court
The undisputed evidence establishes that although defendant had registered
in September of 2011, he was thereafter incarcerated and released in January of
2013. In reversing a decision of this Court, our Supreme Court clarified,
[a]s long as the registrant remains incarcerated, his
address is that of the facility or institution in which he is
confined. Although the State did not elicit any evidence
tending to show the location at which defendant had been
incarcerated prior to his release from the custody of the
Division of Adult Correction on 14 November 2012, his
address necessarily changed when he was released from
incarceration. As a result, in accordance with N.C.G.S. §
14–208.9(a), defendant was required to 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.
Although defendant had last registered with the Gaston
County Sheriff’s Office, he failed to report in person or
provide written notice of the fact that his address had
changed from the facility or institution in which he had
been incarcerated to his new residence following his release
from the custody of the Division of Adult Correction on 14
November 2012.
State v. Barnett, 368 N.C. 710, 714-15, 782 S.E.2d 885, 889-90 (2016) (citations,
quotation marks, ellipses, brackets, and footnote omitted).
Defendant argues in response to Barnett that he was only in prison for a
month, not long enough to establish a new address. But our Supreme Court did not
establish a minimum time period of incarceration for the facility imprisoning a
registrant to be considered a new address; rather, the Court stated, “[a]s long as the
registrant remains incarcerated, his address is that of the facility or institution in
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ST. V. REYNOLDS
Opinion of the Court
which he is confined.” Id. at 714, 782 S.E.2d at 889. Defendant was not merely in
jail overnight but rather was incarcerated for “a 30-day contempt period[,]” so Barnett
still controls. See id. By showing defendant had been incarcerated for approximately
a month and then released, the State established that defendant had a new address,
see id., and thus the trial court properly denied defendant’s motion to dismiss. This
argument is overruled.
IV. Sentencing
Defendant next contends that “[t]he trial court sentenced . . . [him] in violation
of N.C. GEN. STAT. § 15A-1335 when [it] imposed a sentence of 117-153 months
when . . . [he] had previously been sentenced to 87-117 months for the same conduct.”
As an initial matter, the State contends that because defendant challenges his
presumptive range sentence, defendant has no right to appeal. But since we are
vacating one of defendant’s convictions he will necessarily need to be resentenced.
Thus, we need not address this issue.
V. State v. Barnett
Defendant next contends that the trial court erred by not allowing his counsel
to refer to State v. Barnett, 239 N.C. App. 101, 768 S.E.2d 327 (2015) in his closing
argument. But since defendant’s trial, this Court’s opinion in State v. Barnett was
reversed by the Supreme Court in Barnett, 368 N.C. 710, 782 S.E.2d 885. Even if
defendant should have been allowed to argue based upon State v. Barnett, 239 N.C.
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ST. V. REYNOLDS
Opinion of the Court
App. 101, 768 S.E.2d 327, at the time of his trial, there is no way to correct the error
now. And even if this Court granted a new trial as defendant requests, defendant
would not now be allowed to rely upon State v. Barnett, 239 N.C. App. 101, 768 S.E.2d
327, as it is not the law. Therefore, this issue is moot. See generally Roberts v.
Madison Cty. Realtors Ass'n, Inc., 344 N.C. 394, 398–99, 474 S.E.2d 783, 787 (1996)
(“A case is moot when a determination is sought on a matter which, when rendered,
cannot have any practical effect on the existing controversy.” (quotation marks
omitted)).
VI. Indictments
Defendant argues that the indictments are fatally defective because they fail
to allege an essential element of North Carolina General Statute § 14-208.11(a)(2)
and (a)(7). Defendant’s argument contends
[t]he indictments in this case are fatally defective because
they failed to allege that Mr. Reynolds changed his address
which is an essential element of the offense of failing to
report or notify of an address change. Rather, the
indictments only allege Mr. Reynolds failed to appear in
person and provide written notice of his address after his
release from incarceration.
(Quotation marks omitted.) “We review the issue of insufficiency of an indictment
under a de novo standard of review.” State v. Marshall, 188 N.C. App. 744, 748, 656
S.E.2d 709, 712 (2008).
The question of what is required in an indictment for crimes under North
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ST. V. REYNOLDS
Opinion of the Court
Carolina General Statute § 14-208.11 has been answered previously by this Court
and our Supreme Court; for a thorough review consider our Supreme Court’s recent
opinion of State v. Williams, 368 N.C. 620, 781 S.E.2d 268 (2016). Ultimately, the
Williams Court
acknowledged the general rule that an indictment using
either literally or substantially the language found in the
statute defining the offense is facially valid and that the
quashing of indictments is not favored. Here, defendant’s
indictment included the critical language found in N.C.G.S.
§ 14–208.11, alleging that he failed to meet his obligation
to report as a person required by Article 27A of Chapter 14.
This indictment language was consistent with that found
in the charging statute and provided defendant sufficient
notice to prepare a defense. Additional detail about the
reporting requirement such as that found in section 14–
208.9 was neither needed nor required in the indictment.
Because defendant’s indictment substantially tracks
the language of section 14–208.11(a)(2), the statute under
which he was charged, thereby providing defendant
adequate notice, we conclude that the Court of Appeals’
analysis in Williams is consistent with the applicable
statutes and holdings cited above. Accordingly, we hold
that defendant’s indictment is valid and conferred
jurisdiction upon the trial court.
368 N.C. 620, 626, 781 S.E.2d 268, 272–73 (2016) (citations and quotation marks
omitted).
Here, one indictment alleged that
as a person required by Article 27A of Chapter 14 of the
General Statutes to register as a sex offender, fail to notify
the last registering Sheriff, Graham Atkinson, of an
address change by failing to appear in person and provide
written notice of his address after his release from
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ST. V. REYNOLDS
Opinion of the Court
incarceration[, and]
the other indictment alleged that
as a person required by Article 27A of Chapter 14 of the
General Statutes to register as a sex offender, fail to report
in person to the Sheriff’s Office as required by N.C.G.S. 14-
208.9(a) by failing to appear in person and provide written
notice of his address after his release from incarceration.
Each indictment “substantially tracks the language of . . . the statute under which
he was charged, thereby providing defendant adequate notice[.]” Id. at 626, 781
S.E.2d at 273. Therefore, this argument is overruled.
VII. Jury Instructions
Lastly, defendant contends that “the trial court plainly erred when it varied
from the pattern instruction and failed to instruct on all elements of the offense of
failure to report an address change.” (Original in all caps.) This argument is tied to
defendant’s double jeopardy argument as he contends that “had the jury been
properly instructed, they probably would have found . . . [him] guilty of only one
offense, as even the trial court recognized that pattern instruction ‘lumps it all into
one charge,’ although in this case the State ‘broke it up into two.’” Because we are
vacating one of defendant’s convictions, we need not address this issue.
VIII. Conclusion
In conclusion, we vacate one of defendant’s two convictions under North
Carolina General Statute § 14-208.11(a) on the basis that his right to be free from
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Opinion of the Court
double jeopardy was violated. Since we are vacating one conviction, we remand for
resentencing. As to all other issues, we find no error.
VACATED in part; NO ERROR in part; REMANDED FOR RESENTENCING.
Chief Judge McGEE and Judge CALABRIA concur.
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