State v. Osborne

• Court: Court of Appeals of North Carolina
• Decided: July 1, 2014
• Docket: 13-1372
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1372 NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

STATE OF NORTH CAROLINA

v. Ashe County No. 10 CRS 51166 TOMMY LEE OSBORNE

Appeal by Defendant from judgment entered 11 July 2013 by

Judge Ronald E. Spivey in Ashe County Superior Court. Heard in

the Court of Appeals 23 June 2014.

Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.

Farber Law Firm, P.L.L.C., by Sarah Jessica Farber, for Defendant.

STEPHENS, Judge.

Defendant Tommy Lee Osborne appeals from judgment entered

after a jury found him guilty of failing to notify the sheriff’s

office when he moved to a new address. We vacate the judgment.

The evidence at trial tended to show that, in 1993,

Defendant was convicted of an offense that required him to

register as a sex offender. On 11 June 2010, Defendant moved -2- from Forsyth County to Ashe County. Defendant provided a change

of address form to the Ashe County Sheriff’s Office (“ACSO”)

indicating that his new address was 309 North Main Street in

Jefferson.

The State Bureau of Investigation sends verification

letters to sex offenders on the anniversary dates of their

registration. Once a sex offender receives the notice, he has

three days to take the notice to the sheriff’s office to be

signed. In November 2010, a verification letter was sent to

Defendant, but was returned as undeliverable.

Upon being notified about the letter’s return, ACSO

Sergeant Randy Lewis went to 309 North Main Street looking for

Defendant. Sgt. Lewis spoke with James Bingham, Defendant’s

brother-in-law. Bingham told Sgt. Lewis that Defendant had not

lived at that address for “a few weeks.” Bingham said Defendant

“had moved to a trailer down in east Jefferson” and provided

Sgt. Lewis with directions to that location. Sgt. Lewis

obtained a warrant for Defendant’s arrest for failure to notify

the ACSO of his new address, and on 29 November 2010, located

Defendant living at the mobile home park described by Bingham. -3- On 14 March 2011, the Ashe County grand jury indicted

Defendant.1 On 10 July 2013, a jury found Defendant guilty of

failing to notify the ACSO of his change in address as required

by N.C. Gen. Stat. § 14-208.11(a)(2). Defendant then entered a

no contest plea to having attained habitual felon status. The

trial court imposed an active sentence of 58-79 months.

Defendant appeals, arguing that the trial court erred in

denying his motion to dismiss when there was insufficient

evidence to show that he had moved. We conclude that the

indictment purporting to charge Defendant with violating section

14-208.11(a)(2) was fatally flawed. Accordingly, we vacate the

judgment entered upon Defendant’s conviction as well as

Defendant’s nolo contendere habitual felon plea.

On appeal, neither party has raised any issue regarding the

indictment. However,

[i]t is well settled that a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony. Lack of jurisdiction in the trial court due to a fatally defective indictment requires the appellate court to arrest judgment or vacate any order entered without authority. The issue of subject matter jurisdiction may be raised at any time, even for the first time on appeal. The subject matter jurisdiction of the trial court is a

1 The specifics of the indictment, which are dispositive of this appeal, are discussed in detail below. -4- question of law, which this Court reviews de novo on appeal.

State v. Barnett, __ N.C. App. __, __, 733 S.E.2d 95, 97-98

(2012) (citations, internal quotation marks, some brackets, and

ellipsis omitted). Further, “subject matter jurisdiction may

not be waived, and this Court has not only the power, but the

duty to address the trial court’s subject matter jurisdiction on

its own motion or ex mero motu.” Rinna v. Steven B., 201 N.C.

App. 532, 537, 687 S.E.2d 496, 500 (2009) (citation omitted).

An indictment charging a felony must set forth:

A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.

N.C. Gen. Stat. § 15A-924(a)(5) (2013). The requirement is

intended

(1) [to provide] such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial[;] and (4) to enable the court, on conviction or plea of nolo contendere or guilty[,] to pronounce sentence according to the rights of the case. -5- State v. Jones, __ N.C. __, __, 734 S.E.2d 617, 627-28 (2014)

(citations and internal quotation marks omitted; some

alterations in original).

In order to be valid and thus confer jurisdiction upon the trial court, an indictment charging a statutory offense must allege all of the essential elements of the offense. The indictment is sufficient if it charges the offense in a plain, intelligible and explicit manner. Indictments need only allege the ultimate facts constituting each element of the criminal offense and an indictment couched in the language of the statute is generally sufficient to charge the statutory offense. While an indictment should give a defendant sufficient notice of the charges against him, it should not be subjected to hyper technical scrutiny with respect to form. The general rule in this State and elsewhere is that an indictment for a statutory offense is sufficient, if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words.

Barnett, __ N.C. App. at __, 733 S.E.2d at 98 (citations,

internal quotation marks, brackets, and ellipses omitted;

emphasis added).

A person who is required to register as a sex offender

commits a felony if he “[f]ails to notify the last registering

sheriff of a change of address as required by this Article.”

N.C. Gen. Stat. § 14-208.11(a)(2) (2013). In turn, section 14-

208.9(a) provides that, “[i]f a person required to register -6- 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.” N.C. Gen. Stat. § 14-

208.9(a) (2013).2 When read in pari materia, sections 14-

208.11(a)(2) and 14-208.9(a) provide that a sex offender

required to register his address with the sheriff who fails to

notify the sheriff of a change of address in writing within

three business days may be found guilty of a felony. State v.

Holmes, 149 N.C. App. 572, 576, 562 S.E.2d 26, 30 (2002). Thus,

“[t]he three essential elements of the offense described in

[section] 14-208.9 are: (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 within three business days of the

change.” Barnett, __ N.C. App. at __, 733 S.E.2d at 98.

Here, the indictment alleges that Defendant violated N.C.

Gen. Stat. § 14-208.11A(2), but that statute makes it a felony

to harbor or assist sex offenders who are required to register

in evading registration as required by law. See N.C. Gen. Stat.

2 This statute has been amended several times since the date of Defendant’s alleged failure to register, but none of those amendments affected subsection (a) or the case law discussed in this opinion. -7- § 14-208.11A (2013) (entitled “Duty to report noncompliance of a

sex offender; penalty for failure to report in certain

circumstances”). The judgment also misstates the relevant

statute as section 14-208.11A(2). However, the language of the

indictment clearly attempts to allege a violation of section 14-

208.11(a)(2):

The jurors for the State upon their oath present that on or about the 23rd day of November[] 2010[] in the county named above the defendant named above unlawfully, willfully and feloniously did as a person required by Article 27A of Chapter 14 of the North Carolina General Statutes to register, did move from his last registered address, 309 N. Main Street, Jefferson, North Carolina, without notifying the Ashe County Sheriff’s Office within three days of his move from that address.

This language largely tracks the operative language of section

14-208.9(a), with two crucial exceptions: (1) it does not

allege that Defendant failed to notify the ACSO in writing, and

(2) it does not specify the time requirement as within three

business days of his move to a new address. Each of these

defects is fatal to the indictment.

The phrases “without notifying” and “within three days” are

plainly not equivalent to the language used in section 14-

208.9(a). Simply put, “notifying” is not the same thing as

“provid[ing] written notice” because one can notify verbally as -8- well as in writing. See Holmes, 149 N.C. App. at 578, 562

S.E.2d at 31 (upholding the defendant’s conviction where he

called someone at the sheriff’s department after moving). Here,

Defendant admitted failing to give written notice and never

alleged that he gave oral notice, instead contending that no

notice was required because he did not move. However, the

ambiguity in the wording employed could create confusion which

would prejudice a defendant in preparing for trial. For

example, a defendant indicted for moving “without notifying” the

sheriff’s office might prepare for trial by assembling evidence

showing that he gave oral notice of his move, only to learn at

trial that this evidence was utterly irrelevant.

Likewise, “within three days” is different from “not later

than the third business day” since not every day is a business

day. Thus, in preparing for trial, a defendant would believe

the State could prevail by proving that three days had passed

before he notified the sheriff’s office of his move rather than

the correct required showing that three business days had

passed.

For these reasons, the indictment was insufficient to

charge a violation of section 14-208.11(a)(2). Accordingly, we

vacate the judgment entered upon Defendant’s conviction and upon -9- his no contest plea to having attained the status of habitual

felon. See State v. Stevens, 151 N.C. App. 561, 564, 566 S.E.2d

149, 151 (2002) (noting that where a felony conviction has been

vacated, leaving no felony conviction to which the habitual

felon indictment may attach, the habitual felon conviction must

also be vacated).

VACATED.

Judges HUNTER, ROBERT C., and ERVIN concur.

Report per Rule 30(e).