216 N.C. App. 153
N.C. Ct. App.2011Background
- Defendant Terry A. Fox was convicted of second-degree rape on 9 February 1996 and required to register as a sex offender in Carteret County.
- Fox registered as a sex offender in Carteret County on 2 February 2006 and was required to notify the sheriff of a change of address within three days.
- In 2009 Angela Wall observed Fox living in the upstairs apartment of a two-unit property at 2717 Piney Park Circle, Morehead City, while she lived downstairs.
- Wall testified about Fox's daily interactions with Fox’s girlfriend (Ms. Teague) and their movements between apartments, implying Fox's residence near Teague.
- Detective Harold Pendergrass, overseeing Carteret County’s registry, previously had an in-person meeting with Fox in November 2008 during which Fox acknowledged understanding his registry duties; by December 2009, police had not been informed Fox had moved from his father’s residence to the Piney Park Circle address.
- Fox was indicted for willfully failing to notify the sheriff of a change of address as required by N.C. Gen. Stat. §§ 14-208.9, 14-208.11, and he was convicted by a jury; the trial court sentenced him to a mitigated term of imprisonment, and Fox appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence on change of address | State: evidence shows Fox lived at Teague's Morehead City residence. | Fox: no clear proof of a changed address. | Sufficient evidence supported change of address. |
| Constitutionality/vagueness of statutes | State: challenged provisions are constitutional as applied. | Fox: statutes vague; challenged on merits. | Void-for-vagueness challenge waived; not reviewed on merits. |
| Plain error in jury instruction on address | State proposed jury instruction equating address with residence. | Fox: instruction insufficient to distinguish mere presence from residence. | Invited error; plain error review declined. |
| Ineffective assistance of counsel | N/A | Fox claims counsel failed to object to hearsay and other testimony. | No ineffective assistance; trial counsel's conduct not prejudicial. |
Key Cases Cited
- State v. Abshire, 363 N.C. 322 (2009) (definition of address; residence vs. domicile; elements of offense)
- State v. Worley, 198 N.C.App. 329 (2009) (address means residence; various indicia of residence)
- State v. Holmes, 149 N.C.App. 572 (2002) (construction of address/§§ 14-208.9 and 14-208.11)
- State v. Powell, 299 N.C. 95 (1980) (sufficiency of evidence standard in dismissal motions)