State v. Pressley , 235 N.C. App. 613 ( 2014 )

NO. COA13-1248
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
STATE OF NORTH CAROLINA
v. Rowan County
No. 12 CRS 55671
ANTHONY PRESSLEY
Appeal by defendant from judgments entered 11 June 2013 by
Judge W. Erwin Spainhour in Rowan County Superior Court. Heard
in the Court of Appeals 6 March 2014.
Roy Cooper, Attorney General, by Hal F. Askins, Special
Deputy Attorney General, for the State.
Gilda C. Rodriguez for defendant-appellant.
DAVIS, Judge.
Anthony Pressley (“Defendant”) appeals from judgments
entered upon a jury verdict finding him guilty of two counts of
failure to register as a sex offender pursuant to N.C. Gen.
Stat. § 14-208.11, based on his listing of a false address on
forms submitted to law enforcement officers following his
release from prison. Defendant argues on appeal that the trial
court (1) erred in denying his motion to dismiss based on the
State’s failure to show that one of the forms containing false
-2-
information was actually required by law to be submitted; (2)
committed plain error in failing to instruct the jury regarding
the statutorily designated intervals at which such forms must be
submitted; and (3) erred in denying his motion to dismiss based
on his contention that he was charged twice for the same
offense. After careful review, we conclude that Defendant
received a fair trial free from error.
Factual Background
The State’s evidence at trial tended to establish the
following facts: Defendant was previously found guilty in Rowan
County Superior Court of taking indecent liberties with a child.
He was sentenced to a term of 19-23 months imprisonment and was
released from prison on 23 April 2012. Pursuant to N.C. Gen.
Stat. § 14-208.7, Defendant – as a convicted sex offender – was
required to provide, upon his release from prison, a signed form
to the sheriff of his county of residence containing, inter
alia, the following information:
The person's full name, each alias, date of
birth, sex, race, height, weight, eye color,
hair color, drivers license number, and home
address.
N.C. Gen. Stat. § 14-208.7(b)(1) (2013) (emphasis added).
Upon his release from prison on 23 April 2012, Defendant
registered with the Rowan County Sheriff’s Office, listing his
-3-
residence on the form as 364 Culbertson Estate’s Drive,
Woodleaf, North Carolina, which was the address of his mother’s
home. On 4 June 2012, at the written direction of the State
Bureau of Investigation, Defendant signed an additional
verification of information form, continuing to list this same
address.
On 3 July 2012, David Allen (“Chief Allen”), the Chief of
Police for the Town of Cleveland, North Carolina, was
investigating an unrelated case and came to the 364 Culbertson
Estate’s Drive residence to interview Defendant. Chief Allen
spoke with Joseph Nathan Rankin (“Rankin”), Defendant’s
stepfather, who informed him that Defendant did not live there.
On 23 July 2012, Chief Allen again spoke with Rankin, who
provided a written statement that Defendant (1) did not live at
364 Culbertson Estate’s Drive; (2) had used that address on the
forms because he “needed an address to provide”; and (3) “ha[d]
only spent the night at [the] house one time since he was
released from prison.” Rankin later clarified that Defendant
had stayed with him and Defendant’s mother at the residence for
two days between 23 April 2012, the date of his release from
prison, and 23 July 2012, the date of Rankin’s statement.
-4-
Chief Allen also spoke with James Alonzo Lewis, who signed
a statement indicating that Defendant had lived with him at 106
Crowder Street in Cleveland, North Carolina “for about three
months” after his release from prison but subsequently left the
residence after a dispute over bills. In addition, Chief Allen
talked with Latisha Vaughan, who provided a written statement
attesting to the fact that Defendant “started staying at [her]
apartment near the end of May 2012” and moved out in August of
2012.
On 29 October 2012, Defendant was indicted on two counts of
failure to register as a sex offender pursuant to N.C. Gen.
Stat. § 14-208.11 with regard to the signed forms he submitted
on 23 April 2012 and on 4 June 2012. A jury trial was held on
11 June 2013 in Rowan County Superior Court. The jury convicted
Defendant on both counts, and the trial court entered judgments
upon the jury verdicts. Defendant was sentenced to two
consecutive sentences of 23-37 months imprisonment. Defendant
gave notice of appeal in open court.
Analysis
I. Denial of Motion to Dismiss Based on State’s Failure to
Prove That Submission of 4 June 2012 Verification Form Was
Required by Statute
-5-
The trial court’s denial of a motion to dismiss is reviewed
de novo on appeal. State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). “Upon defendant’s motion for dismissal,
the question for the Court is whether 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. If so, the motion is
properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526
S.E.2d 451, 455 (citations and quotations omitted), cert.
denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
Defendant initially contends that the trial court erred in
denying his motion to dismiss because the State failed to prove
that the 4 June 2012 verification form he submitted was
“required” by statute. We disagree.
Defendant was charged with violating N.C. Gen. Stat. § 14-
208.11, which is a part of North Carolina’s Sex Offender
Registration Act (“the Act”), codified at N.C. Gen. Stat. § 14-
208.5 et seq. N.C. Gen. Stat. § 14-208.9A provides that,
beginning on the date of his initial registration and every six
months thereafter, a person required to register under the Act
must submit a verification form to the sheriff of his county of
residence within three business days of receiving it. The form
-6-
must be signed and must indicate, among other things, “[w]hether
the person still resides at the address last reported to the
sheriff. If the person has a different address, then the person
shall indicate that fact and the new address.” N.C. Gen. Stat.
§ 14-208.9A (2013). The statute Defendant was charged with
violating, N.C. Gen. Stat. § 14-208.11, further states, in
pertinent part, that:
A person required by this Article to
register who willfully does any of the
following is guilty of a Class F felony:
. . . .
(4) Forges or submits under false pretenses
the information or verification notices
required under this Article.
N.C. Gen. Stat. § 14-208.11(a)(4) (2013).
Defendant does not argue that the address he listed on the
23 April 2012 and 4 June 2012 forms was correct. Rather, he
contends that the 4 June 2012 form was not required to be
submitted under N.C. Gen. Stat. § 14-208.9A because, under that
statute, verification forms must only be submitted every six
months subsequent to the date of the initial registration form.
Defendant’s argument, while novel, lacks merit. The clear
and unambiguous purpose of the Act is
to assist law enforcement agencies' efforts
to protect communities by requiring persons
-7-
who are convicted of sex offenses or of
certain other offenses committed against
minors to register with law enforcement
agencies, to require the exchange of
relevant information about those offenders
among law enforcement agencies, and to
authorize the access to necessary and
relevant information about those offenders
to others as provided in this Article.
N.C. Gen. Stat. § 14-208.5 (2013).
As a part of this statutory scheme, N.C. Gen. Stat. § 14-
208.9A is intended to ensure that law enforcement officers
possess complete and accurate information as to the addresses of
convicted sex offenders living in North Carolina. This intent
is reinforced by N.C. Gen. Stat. § 14-208.9A(b), which provides,
in relevant part, as follows:
Additional Verification May Be Required.--
During the period that an offender is
required to be registered under this
Article, the sheriff is authorized to
attempt to verify that the offender
continues to reside at the address last
registered by the offender.
N.C. Gen. Stat. § 14-208.9A(b).
The only rational reading of N.C. Gen. Stat. § 14-208.11 is
that it criminalizes the provision of false or misleading
information on forms submitted pursuant to the Act – regardless
of when these forms are submitted. The schedule of deadlines
set out in N.C. Gen. Stat. § 14-208.9A is simply designed to
-8-
provide a reliable timetable for the filing of verification
forms. The inclusion of this schedule in N.C. Gen. Stat. § 14-
208.9A does not excuse the provision of false information on
verification forms submitted on other dates. Indeed,
Defendant’s argument, if accepted, would permit the submission
of false or misleading information to law enforcement agencies
on forms submitted at time intervals different than those
explicitly set out in the statute. We decline to adopt a
construction of the statute that would both thwart the express
intent of the General Assembly and fly in the face of common
sense. See State v. Jones, 359 N.C. 832, 837, 616 S.E.2d 496,
499 (2005) (holding that “[i]n construing statutes courts
normally adopt an interpretation which will avoid absurd or
bizarre consequences, the presumption being that the legislature
acted in accordance with reason and common sense and did not
intend untoward results” (citation omitted)). Accordingly, we
hold that the trial court did not err in denying Defendant’s
motion to dismiss based on the State’s failure to prove that
Defendant was required by statute to submit the 4 June 2012
verification form on that date.
II. Jury Instructions
-9-
In his second argument, Defendant contends that the trial
court committed plain error by failing to instruct the jury that
the 4 June 2012 verification form was not required to be
submitted on that date based on the timetable set out in N.C.
Gen. Stat. § 14-208.9A. Because Defendant did not request a
jury instruction on this issue, we review this argument only for
plain error. See State v. McClary, 198 N.C. App. 169, 175, 679
S.E.2d 414, 419 (2009) (“Plain error review is only available in
criminal cases and is limited to errors in jury instructions or
rulings on the admissibility of evidence.”).
[T]he plain error rule . . . is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been done,
or where [the error] is grave error which
amounts to a denial of a fundamental right
of the accused, or the error has resulted in
a miscarriage of justice or in the denial to
appellant of a fair trial or where the error
is such as to seriously affect the fairness,
integrity or public reputation of judicial
proceedings or where it can be fairly said
the instructional mistake had a probable
impact on the jury's finding that the
defendant was guilty.
State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333
(2012) (citations and quotations omitted).
-10-
This argument is foreclosed by our ruling on Defendant’s
first issue on appeal. By arguing that the trial court erred in
declining to instruct the jury that N.C. Gen. Stat. § 14-208.9A
did not require Defendant to submit a verification form on 4
June 2012, Defendant is essentially re-arguing his earlier
contention that accurate information is required only on
verification forms submitted in strict accordance with the
timetable set out in N.C. Gen. Stat. § 14-208.9A. In light of
the fact that we have rejected that argument, it logically
follows that the trial court did not commit plain error by
declining to instruct the jury as to this fact.
Because the statutory prohibition against sex offenders
providing a false address to law enforcement officers applies to
verification forms submitted at any time, there was no reason
for the trial court to instruct the jury in the manner asserted
by Defendant. Accordingly, we hold that the trial court did not
commit plain error in its jury instructions.
III. Denial of Motion to Dismiss Based on Continuing Offense
Theory
In his final argument, Defendant contends that the trial
court erred in denying his motion to dismiss because he was
charged twice for the same offense. This argument is also
meritless.
-11-
Defendant characterizes the two offenses for which he was
convicted as one continuing offense such that he could not
lawfully be convicted twice on these facts. However,
Defendant’s argument ignores the fact that – on two separate
occasions – he submitted verification forms that contained false
information regarding his address. The submission of each of
these forms constituted a distinct violation of N.C. Gen. Stat.
§ 14-208.11(a)(4). Consequently, we conclude that the trial
court did not err in denying Defendant’s motion to dismiss based
on this theory.
Conclusion
For the reasons stated above, we hold that Defendant
received a fair trial free from error.
NO ERROR.
Judges CALABRIA and STROUD concur.