State v. BarnettState v. Barnett
Sexual Offenders—registration—failure to notify of new address after release from incarceration
The Court of Appeals erred by vacating defendant‘s sex offender registration conviction arising from a 1997 felony conviction for taking indecent liberties with a child. Although defendant had last registered with the Gаston County Sheriff‘s Office, he failed to report in person or provide written notice of the fact that his address had changed from the facility or institution in which he had been incarcerated to his new residence following his release from custody no later than the third business day after the change as required by
Justice BEASLEY did not participate in the consideration or decision of this case.
On discretionary review pursuant to
Roy Cooper, Attorney General, by J. Joy Strickland and William P. Hart, Jr., Assistant Attorneys General, for the State-appellant.
Guy J. Loranger for defendant-appellee.
Defendant Keith Antonio Barnett was convicted of violating the sex offender registration laws and resisting, delaying, and obstructing a public officer. A unanimous panel of the Court of Appeals vacated defendant‘s sex offender registration conviction. We now revеrse that decision of the Court of Appeals.
Defendant is required to register as a sex offender pursuant to the North Carolina Sex Offender and Public Protection Registration Program because of a 1997 felony conviction for taking indecent liberties with a child. On 6 January 2010, defendant pleaded guilty to and was convicted of failing to register as a sex offender in October 2009. On 15 February 2010, defendant completed the initial registration process with the Gaston County Sheriff‘s Office, at which point defendant was required to report his physical address and to review “notice of duty to register” documentation. During the initial registration process, defendant reported that he resided at 554 South Boyd Street in Gastonia.
On 17 August 2011, a jury found defendant guilty of a second sex offender registration offense. Based upon that conviction, defendant was sentenced to an active term of twenty-eight to thirty-four months imprisonment. On 2 October 2012, the Cоurt of Appeals filed an opinion vacating defendant‘s 17 August 2011 conviction based upon a determination that the indictment that had been returned against him in that case was fatally defective. State v. Barnett, 223 N.C. App. 65, 72, 733 S.E.2d 95, 100 (2012). On 14 November 2012, the North Carolina Division of Adult Correction released defendant from its custody in accordance with the Court of Appeals’ decision.
On 6 February 2013, Deputy Hester, accompanied by two other deputies, went to 332 North Mountain Street in Gastonia, which was the address at which defendant was suspеcted of residing. As the deputies arrived, they observed defendant, who had been standing in the front yard, run into the house. After presenting himself at the front door of the residence and speaking with a woman who identified herself as defendant‘s mother, Deputy Hester was allowed to enter the house in order to look for defendant.
When Deputy Hester located defendant on the back porch of the residence and informed defendant that he was being placed under arrest for failing to provide notice that he had changed his address, defendant stated that he was not going back to jail and stood “in a competitive manner with his fists up in the air.” After defendant refused to submit himself to arrest after repeated demands had been made that he lower his hands, Deputy Hester used a Taser to subdue defendant, handcuffed him, and placed him under arrest.
On 6 February 2013, warrants for arrest charging defendant with failing to notify the Gaston Cоunty Sheriff‘s Office of his address within three business days after having changed his address and with resisting, delaying, and obstructing a public officer were issued. On 18 February 2013, a Gaston County grand jury returned bills of indictment charging defendant with failing to notify the Gaston County Sheriff‘s Office of his address within three business days after having changed his address and resisting, delaying, and obstructing a public officer. The charges against defendant came on for trial before the trial court and a jury at the 9 December 2013 criminal session of the Superior Court, Gaston County. At the appropriate time, defendant unsuccessfully moved to dismiss the sex offender registration charge for insufficiеncy of the evidence. After hearing the evidence, the arguments of counsel, and the trial court‘s instructions, the jury found defendant guilty as charged. In light of the jury‘s verdict, the trial court consolidated defendant‘s convictions for judgment and entered a judgment sentencing defendant to a term of twenty-five to thirty-nine months imрrisonment. Defendant noted an appeal to the Court of Appeals from the trial court‘s judgment.
In seeking relief from the trial court‘s judgment before the Court of Appeals, defendant argued that the trial court had erred by denying his motion to dismiss the sex offender registration charge for insufficiency of the еvidence on the grounds that the record evidence did not tend to show defendant‘s guilt of the offense charged in the indictment and that there was a fatal variance between the charge alleged in the indictment and the evidence adduced at trial. State v. Barnett, ___ N.C. App. ___, ___, 768 S.E.2d 327, 329 (2015).1 A unanimous panel of the Court of Appeаls agreed with defendant‘s contention. After noting that the indictment returned against defendant alleged that he had violated
on the theory that he had failed to
The extent to which the evidence presented at trial suffices to support the dеnial of a motion to dismiss for insufficiency of the evidence is a question of law reviewed de novo by the appellate court. See, e.g., State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982). As this Court has previously stated:
When considering a motion to dismiss for insufficiency of evidence, the court is concerned only with the legal sufficiency of the evidence to support а verdict, not its weight, which is a matter for the jury. The evidence must be considered in the light most favorable to the state; all contradictions and discrepancies therein must be resolved in the state‘s favor; and the state must be given the benefit of every reasonable inference to be drawn in its favor from the evidence. There must be substantial evidence of all elements of the crime charged, and that the defendant was the perpetrator of the crime.
State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (citations omitted). “It is a rule of universal observance in the administration of criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment.” State v. Jackson, 218 N.C. 373, 376, 11 S.E.2d 149, 151 (1940). “A variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged.” State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971). “A motion to dismiss is in order when the prosecution fails to offer sufficient evidence the defendant committed the offense charged.” Id. at 445, 183 S.E.2d at 646. However, “[i]n order to prevail on such a motion, the defendant must show a fatal variance between the offense charged and the proof as to ‘[t]he gist of the offense.‘” State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997) (quoting Waddell, 279 N.C. at 445, 183 S.E.2d at 646).
In the opinion that we filed today in State v. Crockett, ___ N.C. ___, ___ S.E.2d ___ (Mar. 18, 2016) (No. 29PA15), this Court clarified that
At trial, Deputy Hester testified that, when a registered sex offender is incarcerated after the date upon which he initially registers, his address for sex offender registration purposes changes to the facility or institution in which he is housed. As long as the registrant remains incarcerated, his address is that of the facility or institution in which he is confined. See State v. Abshire, 363 N.C. 322, 331, 677 S.E.2d 444, 451 (2009) (concluding that “a sex offender‘s address indicates his or her residence, meaning the actual place of abode where he or she lives, whether permanent or temporary“), superseded on other grounds by statute, An Act to Protect North Carоlina‘s Children/Sex Offender Law Changes, ch. 247, sec. 8(a), 2005 N.C. Sess. Laws (Reg. Sess. 2006) 1065, 1070-71. Although the State did not elicit any evidence tending to show the location at which defendant had been incarcerated prior to his release from the custody of the Division of Adult Correction on 14 November 2012, his address necessarily changеd when he was released from incarceration. As a result, in accordance with
determining that the record did not contain sufficient evidence to permit a determination that defendant committed the offеnse of failure to register. As a result, for all of these reasons, the Court of Appeals’ decision vacating defendant‘s conviction for failure to
REVERSED.
Justice BEASLEY did not participate in the consideration or decision of this case.