State v. Williams , 368 N.C. 620 ( 2016 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 333PA14
Filed 29 January 2016
STATE OF NORTH CAROLINA
v.
RYAN MATTHEW WILLIAMS
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, 763 S.E.2d 926
(2014), finding no error after appeal of a judgment entered on 7 June 2013 by Judge
Eric L. Levinson in Superior Court, Burke County. Heard in the Supreme Court on
17 March 2015.
Roy Cooper, Attorney General, by William P. Hart, Jr., Assistant Attorney
General, for the State.
Ryan McKaig for defendant-appellant.
EDMUNDS, Justice.
As a registered sex offender, defendant Ryan Matthew Williams was required
to report to the appropriate sheriff when he changed his address. He was convicted
of failing to make such a report. Before this Court, defendant argues that the
indictment failed to allege properly the time period within which he was required to
file the report. We conclude that the indictment adequately apprised defendant of
the conduct that was the basis of the charge against him. Accordingly, we affirm the
STATE V. WILLIAMS
Opinion of the Court
ruling of the Court of Appeals that the trial court correctly denied defendant’s motion
to dismiss.
Ryan Matthew Williams was convicted of indecent liberties with a minor on 15
March 2001 and, as a result, is a registered sex offender subject to the requirements
of N.C.G.S. §§ 14-208.9 and 14-208.11. Defendant maintained his registration with
the Burke County Sheriff’s Office and reported several changes of address. Evidence
presented at defendant’s trial indicated that from 17 February 2010 to 5 April 2011,
defendant’s registered address was 107-D Ross Street in Morganton, where he lived
with Sunshine Blevins. In April 2011, defendant and Blevins moved to 2022 Bristol
Creek Avenue in Morganton and registered that address with the Burke County
Sheriff’s Office. In June 2011, defendant left the Bristol Creek Avenue home for 107-
D Ross Street, Morganton, a move he registered on 29 June 2011.
On 8 September 2011, Deputy Sheriff Chuck Fisher went to defendant’s last
registered address at 107-D Ross Street. When no one answered his knock, Deputy
Fisher contacted the property owner, Tim Norman, who reported that defendant had
been living at a different address, 109-D Ross Street. Other evidence indicated that
defendant had never resided at 107-D Ross Street. Norman advised Deputy Fisher
that defendant stopped paying rent for the 109-D Ross Street residence and had
vacated the premises in late July 2011 after Norman demanded that he either pay up
or leave. At least six weeks passed after defendant’s departure before Deputy Fisher
came searching for him. Defendant was arrested on 13 September 2011.
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Opinion of the Court
On 5 October 2011, defendant was indicted by a Burke County Grand Jury for
violating N.C.G.S. § 14-208.11 by failing to provide timely written notice of his change
of address. The indictment included a preprinted block containing information in the
following format:
DATE OF OFFENSE ON OR ABOUT
09/08/2011 - after 4/2011
The body of the indictment beneath this block did not include a date but instead
alleged that “on or about the date of offense shown,” defendant committed the charged
crime.
Defendant filed a motion to dismiss the indictment on the grounds that “it does
not allege a specific enough date of offense to allow the Defendant to formulate a
defense and is violative of his due process rights.” After considering arguments
presented by counsel for both sides, the trial court denied defendant’s motion to
dismiss. On 7 June 2013, a jury found defendant guilty and the trial court imposed
a sentence in the presumptive range of twenty-three to twenty-eight months of
imprisonment.
Defendant appealed to the Court of Appeals, challenging the sufficiency of the
indictment. State v. Williams, ___ N.C. App. ___, 763 S.E.2d 926, 2014 WL 3824252
(2014) (unpublished). He argued that the indictment was fatally defective because it
identified the date of offense as a five month span, and that, because the indictment
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Opinion of the Court
was defective, the trial court lacked jurisdiction to hear his case. Id. at *3. The Court
of Appeals concluded that section 14-208.9(a)’s requirement that defendant register
a new address within three business days of the change “does not make the specific
day or year an essential element of the crime.” Id. at *4. The court held that the
indictment sufficiently alleged that defendant failed to notify the sheriff’s office of a
change of address within the prescribed statutory time period. Id. The court further
held that defendant failed to demonstrate that he was misled by the times set out in
the indictment and that no basis existed for concluding the indictment was fatally
defective. Id. Consequently, the trial court properly denied the motion to dismiss.
Id. On 9 October 2014, this Court allowed defendant’s Petition for Discretionary
Review.
Although defendant argued to the trial court and the Court of Appeals that the
time span alleged in the indictment rendered it defective, he takes a different tack
before us. Defendant contends his constitutional right to notice was violated because
the indictment alleged that he failed to register his change of address with the
sheriff’s office within three days, rather than within three business days. Defendant
made the latter argument in his Petition for Discretionary Review while candidly
acknowledging that he had not raised it below. We will consider the petition because
conflicting analyses of this issue may be found in opinions of the Court of Appeals.
“[W]here an indictment is alleged to be invalid on its face, thereby depriving
the trial court of its jurisdiction, a challenge to that indictment may be made at any
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Opinion of the Court
time, even if it was not contested in the trial court.” State v. Wallace, 351 N.C. 481,
503, 528 S.E.2d 326, 341 (citations omitted), cert. denied, 531 U.S. 1018, 121 S. Ct.
581, 148 L. Ed. 2d 498 (2000). The alleged failure of a criminal pleading to charge
the essential elements of a stated offense is an error of law that this Court reviews
de novo. See State v. Sturdivant, 304 N.C. 293, 308-11, 283 S.E.2d 719, 729-31 (1981).
The North Carolina Constitution guarantees that, “[i]n all criminal
prosecutions, every person charged with crime has the right to be informed of the
accusation.” N.C. Const. art. I, § 23. Ordinarily, a person accused of a felony is
charged by means of an indictment, which must contain
[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.G.S. § 15A-924(a)(5) (2013). In interpreting this statute, we have held that “it is
not the function of an indictment to bind the hands of the State with technical rules
of pleading,” Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731 (citing State v. Gregory,
223 N.C. 415, 27 S.E.2d 140 (1943)), and that we are no longer bound by the “ancient
strict pleading requirements of the common law,” State v. Freeman, 314 N.C. 432,
436, 333 S.E.2d 743, 746 (1985). Instead, contemporary criminal pleadings
requirements have been “designed to remove from our law unnecessary technicalities
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Opinion of the Court
which tend to obstruct justice.” Id. Consistent with this retreat from archaic pleading
standards, the General Assembly has provided that
[e]very criminal proceeding by . . . indictment . . . is
sufficient in form for all intents and purposes if it expresses
the charge against the defendant in a plain, intelligible,
and explicit manner; and the same shall not be quashed,
nor the judgment thereon stayed, by reason of any
informality or refinement, if in the bill or proceeding,
sufficient matter appears to enable the court to proceed to
judgment.
N.C.G.S. § 15-153 (2013). We now consider whether defendant’s indictment passes
muster.
The indictment alleged that defendant violated N.C.G.S. § 14-208.11, which
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: . . . (2) Fails to notify
the last registering sheriff of a change of address as required by this Article.”
N.C.G.S. § 14-208.11(a)(2) (2013). Defendant’s indictment cited “G.S. 14-208.11” and
alleged that “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 with the Sheriff’s office in the county wherein he resides . . . failed [sic] to
provide written notice of his change of address no later than the 3rd day after his
change in address . . . . This act was in violation of the law referenced above.”
Details of the registration requirements are set out in N.C.G.S. § 14-208.9,
which states that “[i]f a person required to register changes address, the person shall
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Opinion of the Court
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.” Id. § 14-208.9(a) (2014). Defendant acknowledges that he was
required to register, but contends that the indictment is fatally defective because it
omitted the word “business” as found in section 14-208.9(a).
Defendant cites State v. Abshire for the proposition that “three business days”
is an essential element of the offense. 363 N.C. 322, 677 S.E.2d 444 (2009). In
Abshire, we addressed an earlier version of the statute at bar and stated that the
third element of the offense was that “the defendant ‘[f]ails to notify the last
registering sheriff of [the] change of address,’ [N.C.G.S. § 14-208.11(a)(2)], ‘not later
than the tenth day after the change,’ N.C.G.S. § 14-208.9(a).’ ” Id. at 328, 677 S.E.2d
at 449 (first and second alterations in original). However, our reference in Abshire to
the ten-day deadline was not critical to the holding in that case. Moreover, we are
reluctant to assume from Abshire that if the statute had said “ten business days,” we
would have found that the word “business” was essential to the pleading, especially
when no such issue was before us. Instead, Abshire discussed the meaning of the
term “address” in that earlier version of the statute, along with the unremarkable
requirement that essential elements be included in the indictment. Id. at 328-32, 677
S.E.2d at 449-51. Abshire did not set out specific language to be used in an indictment
alleging an offense under section 14-208.11, and the holding in that case is consistent
with the flexible pleading standards expressed in sections 15-153 and 15A-924(a).
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Opinion of the Court
Defendant also argues that the Court of Appeals holding in State v. Osborne,
___ N.C. App. ___, 763 S.E.2d 16, 2014 WL 2993855 (2014) (unpublished), entitles
him to a new trial. The defendant in Osborne was, as here, a convicted sex offender
required to register with the sheriff of his county of residence. The indictment in
Osborne alleged only that the defendant was required to register within three days of
his move to a new address. The Court of Appeals vacated the defendant’s conviction
for a violation of N.C.G.S. § 14-208.11(a)(2) on the grounds that “three days,” as
alleged in the indictment, is different from “not later than the third business day,” as
found in section 14-208.9(a). 2014 WL 2993855 at *3. In contrast, in the case at bar,
the Court of Appeals concluded that time was not of the essence for this reporting
offense and “[i]t does not matter when the crime occurred so long as the evidence
shows that the defendant did not give the proper notification.” The court then held
“that an indictment under N.C. Gen. Stat. § 14-208.11 is sufficient if it alleges . . . the
pertinent time element.” Williams, 2014 WL 3824252, at *4. In other words, the
absence of the term “business” before “days” in the indictment was found fatal in
Osborne but not in Williams.
We have found no other case in which a panel of the Court of Appeals has
adopted Osborne’s rationale. In State v. Leaks, ___ N.C. App. ___, 771 S.E.2d 795
(2015), the defendant sex offender was charged with failure to report a change of
address under N.C.G.S. § 14-208.11(a)(2). He claimed the indictment was invalid
because it failed to allege that he was required to provide “written notice” as set out
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Opinion of the Court
in N.C.G.S. § 14-208.9. Id. at ___, 771 S.E.2d at 797-98. In a published opinion, the
Court of Appeals distinguished Osborne and held that written notice was an
evidentiary matter to be proved at trial but need not be alleged in an indictment
brought under section 14-208.11. Id. at ___, 771 S.E.2d at 798-99. We denied
discretionary review. State v. Leaks, ___ N.C. ___, 775 S.E.2d 870 (2015). In State v.
Furr, ___ N.C. App. ___, 775 S.E.2d 693, 2015 WL 3791729 (2015) (unpublished), the
defendant sex offender was indicted under N.C.G.S. § 14-208.11(a)(2) for failing to
report a new address. The defendant claimed the indictment was invalid because it
did not allege that he was required to provide “written notice” within “three business
days,” as set out in N.C.G.S. § 14-208.9. 2015 WL 3791729 at *2. The Court of
Appeals declined to follow Osborne and found no error. Id. at *4. We denied
discretionary review. State v. Furr, ___ N.C. ___, 775 S.E.2d 854 (2015). In State v.
McLamb, ___ N.C. App. ___, 777 S.E.2d 150 (2015), the defendant sex offender was
charged under N.C.G.S. § 14-208.11(a)(2) with failing to register. He claimed the
indictment was invalid for failing to allege that he was required to provide “written
notice” within “three business days.” Id. at ___, 777 S.E.2d at 151. In a published
opinion, the Court of Appeals declined to follow Osborne and found no error. Id. at
___, 777 S.E.2d at 152-53.
Moreover, the Court of Appeals declined to subject indictments to the type of
hypertechnical scrutiny employed in Osborne before that opinion was issued. In State
v. Pierce, ___ N.C. App. ___, 766 S.E.2d 854 (2014), the defendant sex offender was
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Opinion of the Court
charged with failing to provide notification of an address change. He argued that the
indictment was fatally defective because it omitted the purportedly essential element
that he report to the sheriff of the new county to which he had moved. Id. at ___, 766
S.E.2d at 857. The Court of Appeals determined that the indictment, “read in
totality,” gave the defendant adequate notice. Id. at ___, 766 S.E.2d at 858. We
denied discretionary review. State v. Pierce, 368 N.C. 262, 772 S.E.2d 734 (2015). In
State v. Harrison, 165 N.C. App. 332, 598 S.E.2d 261 (2004), the defendant claimed
that the indictment charging him with failure to report was defective because it did
not identify the specific dates of the moves or the defendant’s new address. The Court
of Appeals found that the indictment provided defendant “ample notice of the charge,”
even though it did not identify the specific dates on which the defendant moved or his
new address. Id. at 336, 598 S.E.2d at 263. We denied discretionary review. State
v. Harrison, 359 N.C. 72, 604 S.E.2d 922 (2004).
Consistent with these Court of Appeals opinions, this Court has 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.” State v. James, 321 N.C. 676, 681, 365 S.E.2d
579, 582 (1988) (citations omitted). 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
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Opinion of the Court
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.
AFFIRMED.
Justice ERVIN took no part in the consideration or decision of this case.
Justice BEASLEY dissenting.
The majority, in concluding that the indictment here was not facially invalid,
violates a defendant’s right to be placed on reasonable notice of the charges pending
against him. The majority incorrectly concludes that the term “business day” is not
an essential element of an indictment under N.C.G.S. § 14-208.11. Our case law
supports a defendant’s right to be placed on reasonable notice of the charges against
him and the indictment here failed to provide reasonable notice. Because subject
matter jurisdiction does not vest with the trial court under a fatally defective
indictment, I respectfully dissent.
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STATE V. WILLIAMS
BEASLEY, J., dissenting
Defendant, a registered sex offender, is required to register as such pursuant
to N.C.G.S. § 14-208.11. This statute states that one who willfully “[f]ails to report
in person to the sheriff’s office” as required by sections 14-208.7, 14-208.9, and 14-
208.9A is guilty of a Class F felony. N.C.G.S. § 14-208.11(a)(7) (2013). Section 14-
208.9 sets out the specific reporting requirements and states, in relevant part, “[i]f 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.” Id.
§ 14-208.9(a) (2014) (emphasis added).
I note here that defendant failed to object to the sufficiency of the indictment
in the trial court or before the Court of Appeals. Defendant now raises the argument
that the indictment was facially invalid, and therefore the trial court lacked subject
matter jurisdiction. Defendant may timely raise this jurisdictional argument for the
first time on appeal to this Court because an argument that the trial court lacked
subject matter jurisdiction may be raised at any time after a verdict. See State v.
Sturdivant, 304 N.C. 293, 307-08, 283 S.E.2d 719, 729-30 (1981); see also State v.
Harwood, ___ N.C. App. ___, ___, 777 S.E.2d 116, 118 (2015) (“The issue of a court's
jurisdiction over a matter may be raised at any time, even for the first time on appeal
or by a court sua sponte.”). While it appears defendant raised an argument under
the North Carolina Constitution, his analysis is consistently grounded in the
interpretation of section 14-208.9. Further, given the conflicting analyses in recent
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BEASLEY, J., dissenting
Court of Appeals opinions, this Court properly addresses defendant’s petition for
discretionary review.
In determining essential elements to be included in an indictment, it is
important to recognize that there is a long-standing trend which disfavors
hypertechnical, common law pleadings and favors more practical, liberal pleadings.
The General Assembly adopted the Criminal Procedure Act of 1975, which
modernized archaic pleading requirements for criminal indictments. See State v.
Freeman, 314 N.C. 432, 436, 333 S.E.2d 743, 746 (1985) (“It is unnecessary for us to
decide here whether that rule drawn from the ancient strict pleading requirements
of the common law has survived the more liberal criminal pleading requirements of
our new Criminal Procedure Act and other recent legislation designed to remove from
our law unnecessary technicalities which tend to obstruct justice.”); see also State v.
Worsley, 336 N.C. 268, 279, 443 S.E.2d 68, 73 (1994) (observing that N.C.G.S. § 15A-
924 “supplanted prior law” requiring more strictly pleaded indictments (citations
omitted)); State v. Palmer, 293 N.C. 633, 638, 239 S.E.2d 406, 410 (1977) (explaining
the requirements of N.C.G.S. § 15A-924 (citations omitted)).
The Criminal Procedure Act sets forth the minimum standard for a sufficient
indictment in North Carolina by requiring
[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
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BEASLEY, J., dissenting
the conduct which is the subject of the accusation.
N.C.G.S. § 15A-924(a)(5) (2013). Indictments serve “(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.” State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917,
919 (1953) (citations omitted).
“An indictment charging a statutory offense must allege all of the essential
elements of the offense.” State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)
(citations omitted). “It 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.’ ” State v. Abraham, 338
N.C. 315, 339, 451 S.E.2d 131, 143-44 (1994) (quoting Sturdivant, 304 N.C. at 308,
283 S.E.2d at 729). “The existence of subject matter jurisdiction is a matter of law
and ‘cannot be conferred upon a court by consent.’ ” In re K.J.L., 363 N.C. 343, 345-
46, 677 S.E.2d 835, 837 (2009) (quoting In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d
787, 793 (2006)).1 An appellate court must vacate any judgment or conviction based
upon a facially invalid indictment because the indictment fails to confer jurisdiction
1Although the case cited is a civil case, if a party to a civil action cannot waive subject
matter jurisdiction, because subject matter jurisdiction must vest with the trial court, a
criminal defendant must also be prohibited from such waiver.
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BEASLEY, J., dissenting
to the trial court. See State v. Petersilie, 334 N.C. 169, 175-76, 432 S.E.2d 832, 835-
36 (1993) (citations omitted); see also State v. Jarvis, 50 N.C. App. 679, 680-81, 274
S.E.2d 852, 852 (1981) (where the trial court dismissed the indictment sua sponte for
lack of subject matter jurisdiction).
Critically, in the statute at issue, the General Assembly amended the time by
which an offender must report his address change to the local sheriff’s department.
Initially, in 1996 the legislature required that an offender submit his change of
address to the sheriff no later than the tenth day after the change. Act of July 29,
1995, ch. 545, sec. 1, 1995 N.C. Sess. Laws 2046, 2048 (effective 1 January 1996). In
2008 the legislature reduced the time period by which an offender must report his
address change from the tenth day to the third business day after the change. Act of
July 18, 2008, ch. 117, sec. 9, 2007 N.C. Sess. Laws (Reg. Sess. 2008) 426, 430-31
(emphases added).
The majority errs by discounting the significance of the “third business day”
reporting requirement established by the General Assembly. In 2006 Congress
enacted the Sex Offender Registration and Notification Act (SORNA) to provide a
comprehensive system for nationwide sex offender registration. 2 See United States
2 SORNA, also known as the Adam Walsh Child Protection and Safety Act of 2006
(Adam Walsh Act), is mostly codified at 42 U.S.C. §§ 16901-16962. See Adam Walsh Act,
Pub. L. No. 109-248, Title I, 120 Stat. 587 (2006). North Carolina is one of numerous states
that have not substantially implemented SORNA, but the State complies with many of its
provisions as a requirement to receive federal funding for crime labs, prisons and jails, and
other law enforcement programs. Office of Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (SMART), Office of Justice Programs, U.S. Dep’t of
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BEASLEY, J., dissenting
v. Price, 777 F.3d 700, 703 (4th Cir.), cert. denied, ___ U.S. ___, 192 L. Ed. 2d 941
(2015).
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).
United States v. White, 782 F.3d 1118, 1128 (10th Cir. 2015) (quoting United States
v. Felts, 674 F.3d 599, 608 (6th Cir. 2012)). In North Carolina, by amending section
14-208.9 to require notification of an address change within three business days, the
legislature intended to comply with the SORNA requirement to adopt the statutory
language in 42 U.S.C. § 16913(c), which provides that “[i]f a sex offender changes his
residence, employment, or student status, he must update his registration within
three business days .” Price, 777 F.3d at 703-04 (emphasis added). 3
Justice, SORNA, http://www.smart.gov/sorna.htm (last visited Jan. 25, 2016); see, e.g., White,
782 F.3d at 1128.
3 Though not defined in this context by the legislature, we assume that a business day
occurs Monday through Friday during “bankers’ hours.”
Further, N.C.G.S. § 90-95 is another example in which the legislature intended to
distinguish business days and calendar days. Time is an essential element in this statute in
that the Legislature has codified time limits by which a defendant has a right to object to the
State’s admitting certain toxicology evidence at trial. See N.C.G.S. § 90-95(g) (2014)
(requiring the State to provide notice to a defendant at least 15 business days before a judicial
proceeding of its intent to introduce a toxicology report into evidence and allowing the
defendant up to five business days to object to introduction of the report into evidence).
Although section 90-95 is based on the Confrontation Clause, this statute highlights the
importance of distinguishing between business days and calendar days in the criminal
context.
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BEASLEY, J., dissenting
The legislature also intended to shorten the “grace period” during which an
offender must report an address change and to specify the method by which the
address change period is calculated. The 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.
This statute provides clarity and reasonable notice to a defendant. Because the
legislature deliberately carved out this distinction, this nomenclature is not
hypertechnical surplusage.
The majority cites three recent opinions from the Court of Appeals as support
that the term “business days” is not an element of the offense and, therefore, not
compulsory language in an indictment under section 14-208.9. In State v. Leaks, upon
the sheriff’s office’s realization that defendant was no longer occupying the address
he previously registered, the sheriff’s office sent defendant “an address verification
letter” that was later returned as “undeliverable.” ___ N.C. App. ___, ___, 771 S.E.2d
795, 797 (2015). In Leaks the defendant argued that his indictment was insufficient
because it did not state that “he was required to provide ‘written notice’ ” of his
address change. ___ N.C. App. at ___, 771 S.E.2d at 797-98. The defendant relied on
State v. Osborne, an unpublished Court of Appeals decision, which held that “written
notice” and “three business days” are essential elements of the offense. Id. at ___,
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BEASLEY, J., dissenting
771 S.E.2d at 798 (citing State v. Osborne, ___ N.C. App. ___, 763 S.E.2d 16, 2014 WL
2993855 (2014) (unpublished). The issue of whether “three business days” is an
element of N.C.G.S. § 14-208.9(a) was not raised in Leaks. The Court of Appeals held
in Leaks that the statutory requirement that notice be provided “in writing” is an
evidentiary matter and not an element of the offense. Id. at ___, 771 S.E.2d at 799.
Moreover, the Court of Appeals relied on State v. Abshire, 363 N.C. 322, 677 S.E.2d
444 (2009), to reject the defendant’s argument that the indictment failed to confer
subject matter jurisdiction to the trial court. Id. at ___, 771 S.E.2d at 799.
Similarly, in State v. McLamb, following the sheriff’s office’s discovery that
defendant had vacated his last registered address without notifying that office, the
defendant was convicted for failing to register. ___ N.C. App. ___, ___, 777 S.E.2d
150, 151 (2015). On appeal the defendant argued that the indictment was deficient
because it failed to contain language alleging the required “written notice” and “three
business days.” Id. at ___, 777 S.E.2d at 151. The Court of Appeals rejected the
analysis in Osborne, noting that the court had since issued Leaks and State v. James,
___ N.C. App. ___, 774 S.E.2d 871 (2015), which held respectively that the exclusion
of “written notice” in Leaks and of “three business days” in James was not a fatal
defect. McLamb, ___ N.C. App. at ___, 777 S.E.2d at 152. The court noted, however,
that the better practice is for the indictment to include the words “written notice” and
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“three business days.” Id. at ___, 777 S.E.2d at 153.4
The majority also cites State v. Furr, an unpublished opinion, to support its
conclusion that “three business days is not required for an indictment under N.C.G.S.
§ 14-208.11.” In Furr the sheriff’s office received information that the defendant did
not reside at his registered address, which was confirmed by the woman with whom
the defendant was living. ___ N.C. App. ___, 775 S.E.2d 693, 2015 WL 3791729 at *1-
2 (2015). On appeal the defendant argued that the indictment did not confer subject
matter jurisdiction because of its omission of “written notice” and “three business
days.” 2015 WL 3791729 at *2. In Furr the Court of Appeals again declined to follow
Osborne, concluding that Osborne is not controlling because the opinion is
unpublished. Id. at *4. The Court of Appeals instead relied on its published opinions
in State v. Pierce, ___ N.C. App. ___, 766 S.E.2d 854 (2014), and State v. Harrison,
165 N.C. App. 332, 598 S.E.2d 261 (2004), both of which held that the indictments
were sufficient despite their failure to allege “additional elements.” Furr, 2015 WL
3791729 at *4.
It is noteworthy that State v. Leaks, State v. McLamb, and State v. Furr were
all decided by the Court of Appeals after the present case was decided by that court.
The conflicts in the Court of Appeals’ opinions, as reflected in Leaks, McLamb, Furr,
4 James noted that defendant was not prejudiced by the omission of the words “three
business days” from the indictment. Further, the court opined that the “indictment
nevertheless gave [the d]efendant sufficient notice of the charge against him.” ___ N.C. App.
at ___, 774 S.E.2d at 875.
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BEASLEY, J., dissenting
and Osborne, suggest that the court has not settled this issue, as the split in its own
precedent demonstrates and, therefore, is not persuasive.
Here defendant also argues that the “timing of the offense is a specific element”
and that the indictment was invalid because it alleged “a window of five months
during which [defendant] could have committed a crime involving a three day
threshold.” The majority cites State v. Harrison for the proposition that the time of
the commission of the offense is not essential. In Harrison, decided by the Court of
Appeals before Osborne, the Court of Appeals rejected the defendant’s argument that
the indictment failed to confer jurisdiction to the trial court because the indictment
did not identify the specific dates of the moves or the new address. 165 N.C. App. at
336, 598 S.E.2d at 263. The Court of Appeals ultimately held that the indictment
gave the defendant adequate notice of the charges pending against him. Id. at 336,
598 S.E.2d at 263.
It cannot be that, as the majority writes, “it does not matter when the crime
occurred” because it is imperative that if a failure to report an address change is
alleged, a defendant must have notice of the time by which he must have reported an
address change. It proves impossible for a defendant to be properly noticed, as the
statute requires, of the time by which he must report an address change to the sheriff
if the indictment does not inform that defendant of the time during which the State
alleges he violated the statute. Neither the statute nor SORNA makes that time
requirement a fluid one. It does appear that when, as here, the time period is alleged,
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BEASLEY, J., dissenting
the proof thereof is an evidentiary matter.
The majority correctly assesses that defendant’s reliance on State v. Abshire is
misguided for the proposition that “three business days” is an essential element of
the offense. The majority also correctly characterizes the holding in Abshire as
defining “address” consistent with SORNA’s intent. Abshire did not address whether
“three business days,” or ten days per the statute at the time Abshire was decided, is
an essential element.
Therefore, because I would hold that the term “business day” is an essential
element for an indictment charging a defendant under N.C.G.S. § 14-208.11, and thus
the indictment at issue here is facially invalid, I respectfully dissent. I would remand
this case to the Court of Appeals for remand to the trial court with instructions to
vacate the judgment based upon this fatally defective indictment.
Justice HUDSON joins in this dissenting opinion.
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