State v. Patterson , 266 N.C. App. 567 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1052
Filed: 6 August 2019
Rowan County, No. 14CRS055709
STATE OF NORTH CAROLINA
v.
CHRISTOPHER DAVID PATTERSON, Defendant.
Appeal by Defendant from judgment entered 28 March 2018 by Judge Lori I.
Hamilton in Rowan County Superior Court. Heard in the Court of Appeals 27
February 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Gail E.
Carelli, for the State-Appellee.
Sharon L. Smith for Defendant-Appellant.
COLLINS, Judge.
This case requires us to determine the definition of “business day” for purposes
of Chapter 27A of our General Statutes. Defendant Christopher David Patterson
appeals from judgment entered upon a jury verdict of guilty of failing to register as a
sex offender by failing to timely return an address verification form. Defendant
argues there was insufficient evidence of his willful failure to return the address
verification form within three business days after receipt because Columbus Day
could not be counted as a business day. We hold that the term “business day,” as
STATE V. PATTERSON
Opinion of the Court
used in Chapter 27A, means any calendar day except Saturday, Sunday, or legal
holidays declared in N.C. Gen. Stat. § 103-4. Because Columbus day is a legal holiday
pursuant to N.C. Gen. Stat. § 103-4, there was insufficient evidence that Defendant
willfully failed to return the address verification form within three business days
after receipt. The trial court erred by denying Defendant’s motion to dismiss and we
thus vacate Defendant’s conviction.
I. Background
On or about 8 March 2012, Defendant was convicted of a sex offense in violation
of N.C. Gen. Stat. § 14-27.7(b), which requires registration under N.C. Gen. Stat. §
14-208.7. On or about 12 March 2012, Defendant registered as a sex offender with
the Rowan County Sheriff’s Department.
Every year on the anniversary of a person’s initial registration date, and again
six months after that date, the Department of Public Safety mails an address
verification form to the last reported address of the person. Once the person receives
the form, he has three business days to take the form to the sheriff’s office to be
signed.
Rowan County Sheriff’s Deputy John Lombard, a twenty-three-year employee
of the department and an acquaintance of Defendant’s since kindergarten, was in
charge of the sex offender registry in Rowan County in 2012. Lombard testified that
when the address verification form was returned to the sheriff’s department as
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Opinion of the Court
undeliverable,1 “I would normally call [Defendant], and he would come in and sign
the [form].” In May 2014, Lombard moved to another position within the sheriff’s
department and Deputy Karen Brindle was put in charge of the sex offender registry.
Around October 2014, an address verification form was mailed to Defendant,
but was returned to the Rowan County Sheriff’s Department as undeliverable. On
Thursday, 9 October 2014, Brindle instructed Lieutenant Larry St. Clair to deliver
the address verification form to Defendant at his place of employment. On that day,
St. Clair found Defendant at his place of employment, and told Defendant that “he
needed to contact Ms. Brindle to set up an appointment to come up and verify the
information she was needing.” St. Claire had Defendant sign a card acknowledging
that he needed to set up an appointment and left the address verification form with
Defendant. The telephone call log entered into evidence by the State showed that
Defendant called Brindle on Thursday, 9 October 2014; Monday, 13 October 2014;
Tuesday, 14 October 2014, at which time he left Brindle a voicemail; and twice on
Wednesday, 15 October 2014. Brindle testified that she did not return any of
Defendant’s calls or respond to his voicemail.
After the unsuccessful attempts to set up an appointment with Brindle as
instructed, Defendant appeared in person at the sheriff’s department on 15 October
1Lombard and Defendant testified that there was an issue with Defendant’s address, and that
the address verification forms, mailed out of Raleigh, would return to the Rowan County Sheriff’s
Department as “undeliverable.”
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Opinion of the Court
2014 and asked to meet with Brindle. Defendant testified that he understood the
form had to be returned within three business days, and thought Columbus Day was
not a business day. He testified, “I thought by showing up on Wednesday I -- I was
complying with my requirement.” He further explained that he thought “Friday
would have been the first [business day]. Obviously, the weekend didn’t count. I
knew that Monday was a federal holiday, so it was my assumption that -- that that
Monday didn’t count as a business day. That was my assumption, so I knew in my
mind, I had until Wednesday to get with the sheriff’s department.” Defendant
testified, “I took Wednesday off on purpose in case I had to meet with her at that
point.”
Upon his arrival at the sheriff’s office, Defendant was told to wait in the lobby.
Unbeknownst to Defendant, at some point on 15 October 2014, the Rowan County
District Court found probable cause that Defendant “unlawfully, willfully, and
feloniously” failed to return an address verification form as required by N.C. Gen.
Stat. § 14-208.9A and issued a warrant for Defendant’s arrest. After waiting in the
lobby, an officer approached Defendant, handcuffed him, and arrested him for failing
to register as a sex offender by failing to return the address verification form.
On 16 October 2014, Defendant was brought to court for his first appearance.
After paying his bond, Defendant saw Brindle in the lobby of the sheriff’s department.
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Opinion of the Court
Defendant approached and handed her the signed address verification form. Brindle
testified that Defendant twice apologized to her “for making a mistake.”
On 8 December 2014, a Rowan County grand jury indicted Defendant for
failure to register as a sex offender by failing to return an address verification form
as required under N.C. Gen. Stat. § 14-208.9A. Defendant was tried by a jury on 27
and 28 March 2018 in superior court. At the close of the State’s evidence and again
at the close of all the evidence, Defendant moved to dismiss for insufficient evidence;
the court denied the motions. The jury found Defendant guilty of failing to register
as a sex offender. The court sentenced Defendant to a term of 19-32 months’
imprisonment, suspended the sentence, and placed Defendant on supervised
probation for 36 months. Additionally, the court required Defendant to complete 24
hours of community service during the first 180 days of probation. The court also
imposed a fine of $250, and assessed costs and fees in the amount of $3,215.50.
Defendant gave proper notice of appeal in open court.
II. Discussion
On appeal, Defendant argues there was insufficient evidence of his failure to
register as a sex offender under N.C. Gen. Stat. § 14-208.9A because there was
insufficient evidence that he (1) failed to return the address verification form within
three business days after receipt or (2) acted willfully if he had, in fact, failed to return
the form within three business days after receipt.
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Opinion of the Court
A. Standard of Review
“This Court reviews a trial court’s denial of a motion to dismiss de novo[.]”
State v. Moore, 240 N.C. App. 465, 470, 770 S.E.2d 131, 136 (2015) (citation omitted).
Moreover, “[i]ssues of statutory construction are questions of law which we review de
novo on appeal[.]” State v. Hayes, 248 N.C. App. 414, 415, 788 S.E.2d 651, 652 (2016).
Upon de novo review, this Court “considers the matter anew and freely substitutes
its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628,
632-33, 669 S.E.2d 290, 294 (2008) (quotation marks and citation omitted).
Upon a defendant’s motion to dismiss, the trial court must determine “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.”
State v. Worley, 198 N.C. App 329, 333, 679 S.E.2d 857, 861 (2009) (quotation marks
and citations omitted). “[T]he trial court must consider the record evidence in the
light most favorable to the State . . . .” Id. (citation omitted). “The defendant’s
evidence, unless favorable to the State, is not to be taken into consideration.” State
v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971). However, if the defendant’s
evidence is consistent with the State’s evidence, then the defendant’s evidence “may
be used to explain or clarify that offered by the State.” Id. (citation omitted).
B. Analysis
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Opinion of the Court
A person required to register as a sex offender pursuant to Article 27A, and
who “willfully” fails to return an address verification form required under N.C. Gen.
Stat. § 14-208.9A, is guilty of a Class F Felony. N.C. Gen. Stat. § 14-208.11 (a)(3)
(2018). N.C. Gen. Stat. § 14-208.9A provides:
(1) Every year on the anniversary of a person’s initial
registration date, and again six months after that date, the
Department of Public Safety shall mail a nonforwardable
verification form to the last reported address of the person.
(2) The person shall return the verification form in person
to the sheriff within three business days after the receipt
of the form.
(3) The verification form shall be signed by the person . . . .
....
(4) If the person fails to return the verification form in
person to the sheriff within three business days after
receipt of the form, the person is subject to the penalties
provided in [N.C. Gen. Stat.] § 14-208.11. . . .
N.C. Gen. Stat. § 14-208.9A(a).
1. Business Days
Defendant moved to dismiss the charge at the end of the State’s case-in-chief,
arguing there was insufficient evidence that Defendant willfully failed to return the
form within three business days as Columbus Day was not a “business day.” Whether
Columbus Day is a “business day” for purposes of N.C. Gen. Stat. § 14-208.9A appears
to be an issue of first impression for this Court.
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Opinion of the Court
“In North Carolina, the cardinal principle of statutory interpretation is to
ensure that the legislative intent is accomplished.” State v. Huckelba, 240 N.C. App.
544, 559, 771 S.E.2d 809, 821 (2015) (internal quotation marks and citation omitted),
rev’d per curiam on other grounds, 368 N.C. 569, 780 S.E.2d 750 (2015). “Generally,
the intent of the General Assembly may be found first from the plain language of the
statute, then from the legislative history, the spirit of the act[,] and what the act seeks
to accomplish.” Id. (internal quotation marks, brackets, and citation omitted).
Moreover, “criminal statutes are to be strictly construed against the State.” State v.
Raines, 319 N.C. 258, 263, 354 S.E.2d 486, 489 (1987) (internal quotation marks and
citation omitted).
Article 27A does not define “business day.” Our General Statutes define and
use the term “business day” in various ways, including: (1) any day other than
Saturday, Sunday, or a legal holiday;2 (2) any day other than Saturday, Sunday, or a
legal holiday when the courthouse is closed for transactions;3 (3) any calendar day
2 See, e.g., N.C. Gen. Stat. § 66-209 (governing invention development services and defining
business day as “any day other than a Saturday, Sunday, or legal holiday”); N.C. Gen. Stat. § 58-87-1
(governing the Volunteer Fire Department Fund and stating, “The Commissioner must award the
grants on May 15, or on the first business day after May 15 if May 15 falls on a weekend or a holiday
. . . .”); N.C. Gen. Stat. § 105-395.1 (governing payment of taxes; “When the last day for doing an act
required or permitted by this Subchapter falls on a [Saturday or Sunday, or a holiday], the act is
considered to be done within the prescribed time limit if it is done on the next business day.”); N.C.
Gen. Stat. § 1A-1, Rule 6 (computing time for civil filings; “When the period of time prescribed or
allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in
the computation.”).
3 See, e.g., N.C. Gen. Stat. § 1A-1, Rule 6 (computing time for civil filings; “The last day of the
period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday when the
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STATE V. PATTERSON
Opinion of the Court
except Sunday and legal holidays;4 (4) any calendar day except Sunday and some
designated legal holidays;5 and (5) “a weekday other than one on which there is both
a State employee holiday and neither house is in session.”6 In a dissenting opinion
from our Supreme Court, Justice Beasley (now Chief Justice Beasley) noted in dicta,
“[t]hough not defined in this context by the legislature, we assume that a business
day occurs Monday through Friday during ‘bankers’ hours.’” State v. Williams, 368
N.C. 620, 630 n.3, 781 S.E.2d 268, 275 n.3 (2016) (Beasley, J., dissenting) (addressing
the necessity of including the phrase “within three business days” in an indictment
for failure to timely notify the sheriff of a change of address pursuant to N.C. Gen.
Stat. § 14-208.9). According to state and federal law, “Columbus Day, the second
Monday in October” is declared to be a state and federal legal public holiday. N.C.
Gen. Stat. § 103-4 (11) (2018); 5 U.S.C. § 6103(a) (2018).
As illustrated by the fact that “business day” is defined and used in various
different ways in our General Statutes, the plain language of N.C. Gen. Stat. § 14-
courthouse is closed for transactions, in which event the period runs until the end of the next day
which is not a Saturday, Sunday, or a legal holiday when the courthouse is closed for transactions.”).
4 See, e.g., N.C. Gen. Stat. § 143-143.21A (governing purchase agreements and buyer
cancellations and defining business day as “any day except Sunday and legal holidays”); N.C. Gen.
Stat. § 66-232 (entitled the Membership Camping Act and defining business day as “any day except
Sunday or a legal holiday.”).
5 See, e.g., N.C. Gen. Stat. § 14-401.13 (governing the failure to give right to cancel in off-
premises sale, lease, or rental of consumer goods or services and defining business day as “[a]ny
calendar day except Sunday, or the following business holidays: New Year’s Day, Washington’s
Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving
Day, Christmas Day, and Good Friday.”).
6 See N.C. Gen. Stat. § 120-33 (governing the duties of the enrolling clerk in the Legislative
Services Commission and defining business day).
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STATE V. PATTERSON
Opinion of the Court
208.9A(a) is ambiguous—it does not make clear what a “business day” is. We
therefore look to the legislative history of the statute and “the circumstances
surrounding its adoption which throw light upon the evil sought to be remedied.”
Huckelba, 240 N.C. App. at 559-60, 771 S.E.2d at 821 (internal quotation marks and
citation omitted).
In 1995, North Carolina enacted Article 27A, “requiring individuals convicted
of certain sex-related offenses to register their addresses and other information with
law enforcement agencies.” State v. White, 162 N.C. App. 183, 185, 590 S.E.2d 448,
450 (2004). “The stated purpose of the law is to curtail recidivism because ‘sex
offenders often pose a high risk of engaging in sex offenses even after being released
from incarceration or commitment and . . . protection of the public from sex offenders
is of paramount governmental interest.’” Id. (quoting N.C. Gen. Stat. § 14-208.5).
Registered offenders were required to “sign and return the [form] verifying his or her
current address” within “ten days of receipt.” Id. at 186, 590 S.E.2d at 451 (citing
N.C. Gen. Stat. § 14-208.9A(4) (2003)).
“In 2006 Congress enacted the Sex Offender Registration and Notification Act
(SORNA) to provide a comprehensive system for nationwide sex offender
registration.” Williams, 368 N.C. at 629, 781 S.E.2d at 274 (citing United States v.
Price, 777 F.3d 700, 703 (4th Cir.), cert. denied, 135 S. Ct. 2911, 192 L. Ed. 2d 941
(2015)) (footnote omitted).
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STATE V. PATTERSON
Opinion of the Court
“Congress through SORNA has not commandeered . . . nor
compelled the state[s] to comply with its requirements.
Congress has simply placed conditions on the receipt of
federal funds. A state is free to keep its existing sex-
offender registry system in place (and risk losing funding)
or adhere to SORNA’s requirements (and maintain
funding).”
Williams, 368 N.C. at 629, 781 S.E.2d at 274-275 (quoting United States v. White, 782
F.3d 1118, 1128 (10th Cir. 2015)) (quotations omitted).
N.C. Session Law 2008-117, effective 1 December 2008 and applicable to
offenses committed on or after that date, substituted “three business days” for “10
days” in N.C. Gen. Stat. § 14-208.9A(a)(2) and (a)(4).7 The session law also
substituted “three business days” for “72 hours” in N.C. Gen. Stat. § 14-208.9A(c). It
is evident from these changes that a “business day” is not synonymous with a “day”
or a 24-hour period—the word “business” imports meaning. See N.C. Dep’t of Corr. v.
N.C. Med. Bd., 363 N.C. 189, 201, 675 S.E.2d 641, 649 (2009) (“[The court] give[s]
every word of the statute effect, presuming that the legislature carefully chose each
word used.”).
The purpose of the session law was “to amend the sex offender registration
requirements to be more stringent,” 2007 Filed Edition of H933,
https://www.ncleg.gov/Sessions/2007/Bills/House/PDF/H933v6.pdf (last visited June
12, 2019), to comply with SORNA requirements by “shorten[ing] the ‘grace period’
7 The same or similar substitution was made in sections 14-208.7, 14-208.9, 14-208.27, and 14-
208.28.
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STATE V. PATTERSON
Opinion of the Court
during which an offender must report an address change” or verify an address.
Williams, 368 N.C. at 630, 781 S.E.2d at 275. Shortening the grace period for
reporting is achieved under even the most expansive statutory definition of business
day which effectively allows six days for reporting (Saturday + Sunday + Holiday +
three weekdays) as opposed to ten (or eleven if the last day of the ten-day period falls
on a Sunday).
Moreover, Justice Beasley has opined that
[t]he legislature’s deliberate change from “day” to
“business day” alleviates confusion for offenders and law
enforcement. For example, if a defendant’s address
changes on Thursday, without this business day
requirement, it would be unclear whether that defendant
is required to report his change of address to the sheriff by
the following Sunday or by the following Tuesday.
Id. While this change alleviates confusion regarding whether a defendant is required
to report on Sunday,8 as every statutory definition of business day excludes Sunday,
it did not alleviate confusion in this case regarding whether Defendant was required
to report on Columbus Day, a legal holiday which is excluded from some but not all
statutory definitions of business day.
The issue of whether Columbus Day was a business day was discussed
extensively in the context of Defendant’s motions to dismiss, the jury charge, and the
arguments allowed to be made in closing. The parties acknowledged that the General
8 The Supreme Court’s calculation requires an inference that a defendant is not required to
report on a Saturday either.
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STATE V. PATTERSON
Opinion of the Court
Assembly left the term “business day” undefined and offered various definitions of
the term. The trial court remarked, “I can’t believe that we don’t have any cases in
North Carolina that have looked at how many -- what counts as a business day for
the purposes of determining the limitations in the sex-offender registry statutes.”
As neither the plain language nor the legislative intent of the statute clearly
assigns meaning to the term “business day,” we analyze N.C. Gen. Stat. § 14-208.9A
under a third and final principle of statutory construction, the rule of lenity. “In
construing ambiguous criminal statutes,” the rule of lenity “requires us to strictly
construe the statute.” State v. Howell, 370 N.C. 647, 659, 811 S.E.2d 570, 577-78
(2018) (internal quotation marks and citations omitted). However,
[t]he canon in favor of strict construction [of criminal
statutes] is not an inexorable command to override
common sense and evident statutory purpose. . . . Nor does
it demand that a statute be given the “narrowest meaning”;
it is satisfied if the words are given their fair meaning in
accord with the manifest intent of the lawmakers.
State v. Raines, 319 N.C. 258, 263, 354 S.E.2d 486, 490 (1987) (quoting United States
v. Brown, 333 U.S. 18, 25-26 (1948)). We hold that the term “business day,” as used
in Chapter 27A, means any calendar day except Saturday, Sunday, or legal holidays
declared in N.C. Gen. Stat. § 103-4. This construction effectuates the purpose of
Session Law 2008-117 to shorten the grace period for reporting, and alleviates
confusion for offenders and law enforcement, thus giving the term its “fair meaning
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STATE V. PATTERSON
Opinion of the Court
in accord with the manifest intent of the lawmakers.” Raines, 319 N.C. at 263, 354
S.E.2d at 490 (quotation marks and citation omitted).
In denying Defendant’s motion to dismiss, the trial court explained:
I do think it’s an issue of fact for the jury to determine
whether or not there’s been testimony that it was not, in
fact, a holiday, there’s been testimony that it was. . . . I
think ultimately, the jury is going have to decide whether
they consider that that was a business day. I don’t think
that’s -- I can’t take a judicial notice of the fact that
Columbus Day is a holiday. It’s not a state holiday. We
don’t have -- we don’t shutdown -- as far as I know, shut
down state offices on Columbus Day.
The trial court erroneously concluded that the statutory construction of N.C. Gen.
Stat. § 14-208.9A and the meaning of “business day” is a question of fact for the jury;
it is a question of law for the court. State v. Marino, No. COA18-1135, 2019 N.C. App.
LEXIS 472, at *5 (Ct. App. May 21, 2019) (“Issues of statutory construction are
questions of law which we review de novo on appeal.”) (internal quotation marks,
brackets, and citation omitted). Moreover, the trial court erroneously concluded that
it could not take judicial notice of the fact that Columbus Day is a legal holiday as
“[i]t is generally held that the courts are bound to take judicial notice of what days
are legal holidays.” State v. Brunson, 285 N.C. 295, 302, 204 S.E.2d 661, 665 (1974)
(internal quotation marks and citations omitted).
Citing Southpark Mall Ltd. P’ship v. CLT Food Mgmt. Inc., 142 N.C. App. 675,
679, 544 S.E.2d 14, 17 (2001) for the proposition the “the term ‘business day’ in a
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STATE V. PATTERSON
Opinion of the Court
commercial lease is any day the property was open for business[,]” the dissent thus
concludes, “because the Rowan County Sheriff’s Office was open for regular business
to the public on Columbus Day, . . . Columbus Day counted as a ‘business day’ for
purposes of Section 14-208.9A[.]” However here, unlike the imposition of civil liability
in Southpark Mall, the State seeks to impose criminal liability, under a statute that
does not clearly define the term “business day.” N.C. Gen. Stat. § 14-208.9A. Under
the rules of statutory construction, the rule of lenity “requires us to strictly construe
the statute.” Hinton, 361 N.C. at 211, 639 S.E.2d at 440. Moreover, Southpark Mall
is inapposite as it involved the meaning of the term “five (5) days” in a commercial
lease agreement. This Court rejected Defendants’ argument that the phrase “days”
should be construed as “business days,” and concluded that “five (5) days”
unambiguously meant five calendar days. Furthermore, the dissent’s determination
of which “‘public holidays’ in Section 103-4 . . . are clearly ‘business days’” is a
determination for the legislature, not this Court.
As we hold that a “business day” is any calendar day except Saturday, Sunday,
or legal holidays declared in N.C. Gen. Stat. § 103-4, and Columbus Day is a legal
holiday declared in N.C. Gen. Stat. § 103-4, the trial court erred in denying
Defendant’s motion to dismiss for insufficient evidence where Defendant received the
address verification form on Thursday, 9 October 2014 and appeared in person at the
sheriff’s department to sign the form on Wednesday, 15 October 2014, a period of
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Opinion of the Court
three business days – excluding Saturday the 11th, Sunday the 12th, and Monday,
Columbus Day, the 13th – after he received the form.
C. Willful Failure to Return Form
In light of our holding, we need not reach Defendant’s argument that the trial
court erred by denying his motion to dismiss where there was insufficient evidence
that he willfully failed to return the address verification form within three business
days after receipt.
III. Conclusion
As there was insufficient evidence that Defendant willfully failed to return the
verification form within three business days after he received it, the trial court erred
in denying Defendant’s motions to dismiss. Accordingly, we vacate Defendant’s
conviction.
VACATED.
Judge INMAN concurs.
Judge DILLON dissents by separate opinion.
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No. COA18-1052 – STATE v. PATTERSON
DILLON, Judge, dissenting.
As explained below, because I conclude that Columbus Day is not a “business
day” under Section 14-208.7 and because the jury found that Defendant’s one-day
tardiness was willful, I dissent.
Section 14-208.7 requires one with a reportable conviction to register his
address initially within three business days by reporting “in person at the
appropriate sheriff’s office[.]” N.C. Gen. Stat. § 14-208.7 (2014). Section 14-208.9A
requires that person to verify his address every six months by returning a verification
form “in person to the sheriff within three business days after the receipt of the form.”
N.C. Gen. Stat. § 14-208.9A (2014). And Section 14-208.11 makes it a crime for a
person to “willfully” fail to return his verification notice as required in Section 14-
208.9A. N.C. Gen. Stat. § 14-208.11(a)(3) (2014).
Here, the evidence showed that Defendant received his verification form on
Thursday, 9 October 2014 but did not return the form to the Rowan County Sheriff’s
Office until Wednesday, 15 October 2014, four business days later.
I. Analysis
A. Columbus Day is a “Business Day”
The majority concludes that Defendant’s return of his form was timely because
Monday, 13 October 2014 should not count as one of the business days since it was
Columbus Day. The majority concludes that it was error for the jury to be allowed to
determine that Columbus Day is a business day. I agree with the majority that the
STATE V. PATTERSON
DILLON, J., dissenting
meaning of “business days” as used in our General Statutes is a question of law. But
conclude, as a matter of law, that Columbus Day is a business day, in the context of
Section 14.208.9A, for the reasons stated below. Therefore, since I believe that the
jury resolved the issue correctly anyway, any error in allowing the jury to pass on
this issue was harmless in this case.
I conclude that the term “business days,” as used in these Sections, includes
any weekday that the “sheriff’s office” is open for regular business and may receive a
verification form as required in Section 14-208.9A. See Southpark Mall Ltd. P’ship
v. CLT Food Mgmt. Inc., 142 N.C. App. 675, 679, 544 S.E.2d 14, 17 (2001) (stating
that the term “business day” in a commercial lease is any day the property was open
for business). And because the Rowan County Sheriff’s Office was open for regular
business to the public on Columbus Day, I conclude that Columbus Day counted as a
“business day” for purposes of Section 14-208.9A, which requires one with a
reportable conviction to verify his address by returning a completed verification form
“to the sheriff[.]” N.C. Gen. Stat. § 14-208.9A.
The majority reasons that Columbus Day is not a “business day,” citing Section
103-4 of our General Statutes, which designates certain days as “public holidays” in
our State. See N.C. Gen. Stat. § 103-4(a)(11) (2014). I do not believe that there is any
ambiguity that the General Assembly did not intend for “business days,” as used in
Section 14-208.9A, to exclude the days it has designated as “public holidays” in
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STATE V. PATTERSON
DILLON, J., dissenting
Section 103-4(a). Admittedly, some of the public holidays listed in Section 103-4 are
days which would also be considered non-business days for the Rowan County
Sheriff’s Office, such as New Year’s Day, Martin Luther King, Jr.’s Birthday, and
Christmas Day. See N.C. Gen. Stat. § 103-4(a)(1), (1a), and (15).9
But there are a number of days listed as “public holidays” in Section 103-4
which are clearly “business days” (where they fall on a weekday), which no one would
reasonably expect the Sheriff’s Office to be closed for regular business to the public,
such as Robert E. Lee’s Birthday (January 19), Greek Independence Day (March 25),
Anniversary of the signing of the Halifax Resolves (April 12), Confederate Memorial
Day (May 10), Anniversary of the Mecklenburg Declaration of Independence (May
20), and Election Day (Tuesday after first Monday in November in even-numbered
years). See N.C. Gen. Stat. § 103-4(a)(2), (3a), (4), (5), (6), and (13).10
Therefore, since the Rowan County Sheriff’s Office was open to the public for
the transaction of regular business on Columbus Day, I conclude that Columbus Day
was a business day under Section 14-208.9A.
B. There Was Sufficient Evidence that Defendant Acted Willfully.
I conclude that there was sufficient evidence from which the jury could find
that Defendant’s tardiness was willful. That is, the jury was free to find that
9 These days are listed on Rowan County’s government website as observed public holidays in
which Rowan County offices are closed.
10 These days are not included in the list of Rowan County’s observed holidays on its website.
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STATE V. PATTERSON
DILLON, J., dissenting
Defendant did not act willfully if they had believed his story that he thought
Columbus Day was not a business day. I note, though, that Defendant did testify
that he attempted to call the Sheriff’s Office on Columbus Day, testimony from which
the jury could infer that Defendant understood Columbus Day to be a business day.
The jury made its call, and we should not disturb its determination.
II. Conclusion
The General Assembly in its role has enacted a law to make it a crime for one
with a reportable conviction to fail willfully to turn in his verification form in person
at the Sheriff’s Office in his county within three business days.
The District Attorney’s office in its role decided to prosecute Defendant for
delivering his verification form one day late. State v. Camacho, 329 N.C. 589, 593,
406 S.E.2d 868, 871 (1991) (“The clear mandate of [N.C. Const. art. IV, § 18] is that
the responsibility and authority to prosecute all criminal actions . . . is vested solely
in the several District Attorneys of the State.”).
The jury in its role resolved conflicts in the evidence and reached a guilty
verdict.
Perhaps, if I was the prosecutor, I would have chosen not to prosecute
Defendant for returning his verification form one day late. Perhaps, if I was on the
jury, I would have believed Defendant’s story regarding his belief about Columbus
Day and his honest attempts to return his form earlier than he did and, therefore,
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STATE V. PATTERSON
DILLON, J., dissenting
not found his tardiness to have been willful. But my role as an appellate judge is not
to make such decisions, but rather simply to apply the law. The prosecutor and the
jury have made their decisions and have done so within the perimeters of the law, as
enacted by our General Assembly. Accordingly, my vote is to conclude that Defendant
had a fair trial, free from reversible error.
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