State v. Osborne ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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.
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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.
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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.
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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
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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.
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§ 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
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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
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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).