Defendant Terry A. Fox appeals from a judgment entered upon a jury verdict finding him guilty of willfully failing to comply with the sex offender registration reporting requirements set forth in N.C.G.S. § 14-208.9. We find no error.
Defendant stipulated at trial and does not dispute on appeal that he was convicted of second-degree rape on 9 February 1996 in Carteret County, North Carolina, and that, as a result of this conviction, defendant was required to register as a sex offender in the county. The record further shows that defendant did register as a sex offender in Carteret County on 2 February 2006 and that he “was required to notify the sheriff of a change of address no later than 3 days after the change.”
The evidence presented at trial tended to show that, in 2009, Angela Wall lived in the downstairs apartment of a two-story, two-unit converted garage at 2717 Piney Park Circle in Morehead City, North Carolina. Ms. Wall worked evenings at the Crystal Clean Laundromat, and spent her days at home with her daughter and then-four-year-old grandson. According to Ms. Wall’s testimony, when the apartment above hers became vacant, Ms. Wall notified her manager at the laundromat, Katina Teague, of the vacancy, who moved into the upstairs apartment shortly thereafter with her twelve-year-old son, Daren. Because of the open, external staircase leading up to Ms. Teague’s apartment, and because the only barrier between the apartments was Ms. Teague’s floor, Ms. Wall said that, while she was in her apartment or outside smoking, she was aware of the comings and goings in and out of Ms. Teague’s apartment and could “hear[] everything.”
According to Ms. Wall, about two months after Ms. Teague moved into the upstairs apartment, defendant — who had recently begun dating Ms. Teague — also moved into the upstairs apartment. Defendant’s living arrangement with Ms. Teague continued for several months until the end of December 2009, when Ms. Wall “got the word” that *155 defendant was a registered sex offender, and reported the information to her landlord and then to the police.
Detective Harold Pendergrass with the Carteret County Sheriffs Department was responsible for overseeing the sex offender registry for Carteret County. Detective Pendergrass testified that, in November 2008, he met with defendant to review defendant’s responsibilities to comply with the statutory requirements of registering as a convicted sex offender. During this visit with Detective Pendergrass, defendant completed an acknowledgement form on which defendant affixed his initials more than twenty-five times to affirm that he understood what was required of him to remain in compliance with the sex offender registry program, including the requirement that he must notify the county sheriff when he changes his address. At the time that Ms. Wall contacted the police in December 2009 to report that defendant was living in the apartment above hers in Morehead City, the detective had not been informed that defendant had changed his address from his father’s residence at 177 Pagoda Court in Newport, North Carolina, to the Piney Park Circle apartment in Morehead City.
After concluding his investigation of Ms. Wall’s complaint, the detective obtained a warrant for defendant’s arrest. Defendant was indicted for failing to notify the sheriff of his change of address as required by Article 27A of the General Statutes. See N.C. Gen. Stat. §§ 14-208.9,14-208.11(a)(2) (2009). At trial, defendant moved to dismiss the charge at the close of the State’s evidence and at the close of all of the evidence, which the court denied. Defendant was found guilty by a jury of willfully failing to comply with the change of address notification requirements of the sex offender registry and, on 4 November 2010, the court ordered defendant to serve a mitigated sentence of twenty to twenty-four months imprisonment. Defendant appeals.
I.
Defendant first contends the trial court erred by denying his motion to dismiss because he asserts that the State provided insufficient evidence that defendant changed his address. We disagree.
“Upon defendant’s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant’s being the perpetrator of such offense. If so, the motion is properly denied.”
State v. Powell,
Although the offense for which defendant was convicted is a violation of N.C.G.S. § 14-208.9, this Court has previously determined that, because N.C.G.S. §§ 14-208.9 and 14-208.11 “deal with the same subject matter, they must be construed in
pari materia
to give effect to each.”
State v. Holmes,
In
Abshire,
our Supreme Court examined the definition of “address” as the term is used in N.C.G.S. §§ 14-208.9(a) and 14-208.11(a)(2) of the registration program,
see id.
at 329-32,
In the present case, Ms. Wall testified that, beginning about a month or two after Ms. Teague moved into the upstairs garage apartment in Morehead City, during the latter half of 2009, defendant stayed at Ms. Teague’s apartment every day and evening. Ms. Wall made the following observations:
First of all, I saw a duffle bag going up with him toting them. And then at night I’d grill out a whole lot in the summertime. They would come downstairs and commute [sic] with us. I’d see him leave with her, come back with her. In the morning time he would take her to work and come back on [sic] her vehicle at the home upstairs. I’ve seen him take Daren to school and come back with the vehicle, and he drove around all day, basically, on [sic] her vehicle while she worked and brought her lunch.
She also testified, “You could hear them upstairs and see them up and downstairs, the stairs going in, shut the lights out and go to sleep. You could hear them upstairs.” She further testified that defendant and Ms. Teague would drink beer and “hang out” with Ms. Wall “[j]ust about every weekend.” Detective Pendergrass then testified that, when he interviewed defendant’s father, James Fox, at the end of 2009 — with whom defendant was purportedly living during this time — Mr. Fox said that defendant “ha[d] not been living at the 177 Pagoda Court residence on a regular basis but instead was residing with a white female subject in Morehead City, North Carolina.” Patrol Officer Tim Quillan further testified that, when he was dispatched to speak with defendant’s father after Ms. Wall contacted the police, Mr. Fox “advised [the officer] that his son did not live there, [and that defendant] lived with his girlfriend somewhere in Morehead by the old Belk.” Additionally, on cross-examination, Ms. Teague said that “[her] son told [her] that he told [Detective] Pendergrass that [defendant] lives [with them in Morehead City].” Therefore, we conclude that the State presented sufficient evidence to withstand defendant’s motion to dismiss. Accordingly, we overrule this issue on appeal.
II.
Defendant next asserts that N.C.G.S. §§ 14-208.9 and 14-208.11 are “unconstitutionally vague” and that N.C.G.S. § 14-208.9 was applied against defendant “in an unconstitutional manner.” However, defendant “did not raise his void for vagueness challenge to [N.C.G.S.]
*159
§§ 14-208.9(a) and 14-208.11 (a)(2) before the trial court.”
See Worley,
III.
Defendant next contends the trial court committed plain error by embellishing the third element of the substantive charge by defining the term “address” and instructing the jury as follows:
Third thing the State must prove beyond a reasonable doubt is that the defendant willfully changed his address and failed to provide written notice of his new address in person within three business days of receiving it to the sheriffs office listed on the address verification form.
Now, for the purposes of the North Carolina sex offender registry statute, the North Carolina Supreme Court has determined that a person’s address has the same meaning as residence. In addition, our North Carolina Supreme Court has determined that a person’s address or residence is the act or fact of living in a given place for some given time and that a person’s address or residence is defined as a person’s place of abode, whether permanent or temporary.
Defendant suggests that the trial court erred because it did not also instruct the jury that “mere physical presence at a location is not the same as establishing a residence.”
See Abshire,
During the charge conference in the present case, the State requested a modification to North Carolina Criminal Pattern Jury Instruction 207.75, which sets out the elements for willfully failing to comply with the sex offender registration law. See N.C.P.I. Crim. 207.75 (2009). After a brief discussion with counsel, the court provided copies of the proposed jury instructions and asked both counsel whether they had any objections to the proposed instructions. Neither counsel objected to the charge as written. Moreover, defense counsel incorporated the court’s instructional language into his closing argument to the jury.
“It is well established that a defendant who ‘causes’ or ‘joins in causing’ the trial court to ‘commit error is not in a position to repudiate his action and assign it as ground for a new trial.’ ”
State v. Jones,
_ N.C. App._, _,
Thus, “[although defendant labels this [issue on appeal] as ‘plain error,’ it is actually invited error because, as the transcript reveals, defendant consented to the manner in which the trial court gave the instructions to the jury,”
see State v. Wilkinson,
IV.
Lastly, defendant contends he was denied effective assistance of counsel because his trial counsel failed to object to testimony that defendant claims was hearsay, and failed to object to testimony that defendant spent thirty days in jail for the offense of driving while his license was revoked. “When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel’s conduct fell below an objective standard of reasonableness.”
State v. Braswell,
Here, defendant first suggests he was prejudiced by his counsel’s failure to object to his own witness’s testimony that he served thirty days for his conviction on a Class 1 misdemeanor.
See
N.C. Gen. Stat. § 20 28(a) (2009). However, in light of defendant’s stipulation that he was convicted of the then Class D — now Class C — felony of second-degree rape,
see State v. Lawrence,
No Error.
Notes
. We recognize that our Supreme Court determined that “[t]he crime of failing to notify the appropriate sheriff of a sex offender’s change of address under N.C.G.S. § 14-208.11(a) is a strict liability offense.”
State v. Abshire,