State v. Williams

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1309
NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

STATE OF NORTH CAROLINA
Burke County
v. No. 11 CRS 52730

RYAN MATTHEW WILLIAMS,
Defendant.

Appeal by defendant from judgment entered 7 June 2013 by

Judge Eric L. Levinson in Burke County Superior Court. Heard in

the Court of Appeals 19 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Lauren T. Earnhardt, for the State.

Ryan McKaig for defendant-appellant.

GEER, Judge.

Defendant Ryan Matthew Williams, a registered sex offender,

appeals from a conviction under N.C. Gen. Stat. § 14-208.11

(2013) for failing to report a change of address to the

sheriff's office. On appeal, defendant primarily contends that

the date of the offense set forth in the indictment, which

appeared to span five months, was too vague to support his
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conviction. However, in the absence of a specific date of

offense, an indictment is fatally defective only if time is of

the essence for the charged offense or if the defendant relied

upon the date of the offense in presenting his defense. Because

time is not of the essence for violations of N.C. Gen. Stat. §

14-208.11, and defendant cannot show that he was prejudiced in

preparing his defense, we hold that defendant has not

demonstrated that the indictment was defective.

Facts

The State's evidence tended to show the following facts.

In 2001, defendant was convicted of taking indecent liberties

with a minor and, upon being released from prison, he was

required, pursuant to N.C. Gen. Stat. § 14-208.9(a) (2001), to

register as a sex offender with the county sheriff and to notify

the county sheriff of any address change. In 2009, defendant

moved to Burke County and registered as a sex offender with the

Burke County Sheriff's Office. On 17 February 2010, defendant's

registered address was 109-D Ross Street in Morganton, North

Carolina, while, on 5 April 2011, defendant's registered address

was at 2022 Bristol Creek Avenue, the home of the mother of

defendant's former girlfriend, Sunshine Blevins.

Sometime in June 2011, defendant moved out of the Bristol

Creek Avenue home and informed the Sheriff's Office that he was
 -3-
now living at 107-D Ross Street. 109-D Ross Street and 107-D

Ross Street are mobile home residences and are part of a 52-unit

mobile home park operated by Tim Norman. Mr. Norman testified

that defendant was in fact living at 109-D Ross Street during

the summer of 2011. According to Mr. Norman, by July 2011,

defendant had stopped paying rent at 109-D Ross Street and, in

accordance with Mr. Norman's demands, defendant vacated the

mobile home by the end of that month. Once defendant vacated

the mobile home, Mr. Norman cleaned the mobile home and posted a

"For Rent" sign in the yard listing his phone number. After

that, Mr. Norman saw defendant several times in the mobile home

park "hanging out" at 107-D Ross Street.

The last address defendant registered with the sheriff was

107-D Ross Street. On 8 September 2011, Deputy Chuck Fisher of

the Burke County Sheriff's Office went to 107-D Ross Street to

ask defendant to come into the Sheriff's Office for questioning

on a matter apparently unrelated to his registration as a sex

offender. Deputy Fisher received no response from knocking on

the door at 107-D Ross Street. He testified that he noticed a

"For Rent" sign in the yard with a phone number, and he had a

conversation with Mr. Norman in which Mr. Norman explained that

"'[defendant had] been gone for a while'" now.
 -4-
On 13 September 2011, defendant was located at another

residence within Burke County. The residence was in someone

else's name, but defendant admitted that he had been staying

there. Defendant was indicted for failing to notify the

Sheriff's Office of a change of address in violation of N.C.

Gen. Stat. § 14-208.11(a)(2).

At trial, Sunshine Blevins testified on behalf of

defendant. According to Ms. Blevins, defendant and she lived at

109-D Ross Street from February 2010 to April 2011. Ms. Blevins

also testified that in April 2011, they moved in with her mother

at her mother's home on Bristol Creek Avenue. Sometime in June

2011, defendant stopped living with Ms. Blevins and moved to

107-D Ross Street. After defendant moved into 107-D Ross

Street, Ms. Blevins would see defendant there "[t]hree or four

times a week" until he was arrested.

The jury found defendant guilty of failing to notify

authorities of a change of address in violation of N.C. Gen.

Stat. § 14-208.11(a)(2). The trial court sentenced defendant to

a presumptive-range term of 23 to 28 months imprisonment, and

defendant timely appealed to this Court.

I

Defendant first argues that his indictment was fatally

defective contrary to N.C. Gen. Stat. § 15A-924 (2013) and
 -5-
violated his due process right to be properly informed of the

charges against him. "We review the issue of insufficiency of

an indictment under a de novo standard of review." State v.

Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712 (2008).

"'The purpose of an indictment is to give a defendant

notice of the crime for which he is being charged.'" State v.

Barnett, ___ N.C. App. ___, ___, 733 S.E.2d 95, 98 (2012)

(quoting State v. Bowen, 139 N.C. App. 18, 27, 533 S.E.2d 248,

254 (2000)). N.C. Gen. Stat. § 15A-924(a)(5) requires that a

criminal indictment include

[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.

To satisfy N.C. Gen. Stat. § 15A-924, "an indictment need

only allege the ultimate facts constituting the elements of the

criminal offense[.]" State v. Blackmon, 130 N.C. App. 692, 699,

507 S.E.2d 42, 46 (1998). We note that "[o]ur construction of

[N.C. Gen. Stat. § 15A-924(a)(4) (1988)] incorporates the rights

afforded a criminal defendant under the United States

Constitution." State v. McKinney, 110 N.C. App. 365, 371, 430

S.E.2d 300, 303 (1993).
 -6-
N.C. Gen. Stat. § 14-208.11(a)(2), the statute under which

defendant was indicted, provides that a person who is required

to register as a sex offender commits a felony if, among other

acts, he "[f]ails to notify the last registering sheriff of a

change of address as required by this Article." This Court has

explained that N.C. Gen. Stat. § 14-208.11(a)(2) "'contains

three essential elements: (1) the defendant is a person required

. . . to register; (2) the [defendant] change[s] his or her

address; and (3) the defendant [willfully] [f]ails to notify the

last registering sheriff of [the] change of address, not later

than the [third] day after the change.'" State v. Fox, 216 N.C.

App. 153, 156-57, 716 S.E.2d 261, 264-65 (2011) (footnote

omitted) (quoting State v. Abshire, 363 N.C. 322, 328, 677

S.E.2d 444, 449 (2009)).

Defendant does not dispute that the indictment is

sufficient with respect to each of the elements of N.C. Gen.

Stat. § 14-208.11(a)(2), but instead challenges the date of

offense specified in the indictment: "09/08/2011 -- after

4/2011." At trial, the prosecutor explained that he did not

intend to allege a range in time for the date of offense, but

rather alleged a specific offense date of 8 September 2011 with

the "4/2011" referring to the last date for which defendant had

a registered address.
 -7-
Nonetheless, even assuming that the indictment specified a

date of offense consisting of a five-month range, defendant has

failed to show that the indictment was fatally defective. N.C.

Gen. Stat. § 15A-924(a)(4) (emphasis added) requires, with

respect to the date of the offense, that an indictment include

"[a] statement or cross reference in each count indicating that

the offense charged was committed on, or on or about, a

designated date, or during a designated period of time."

However, "[e]rror as to a date or its omission is not ground for

dismissal of the charges or for reversal of a conviction if time

was not of the essence with respect to the charge and the error

or omission did not mislead the defendant to his prejudice."

Id.

Thus, N.C. Gen. Stat. § 15A-924(a)(4) "allows indictments

to designate a 'period of time' during which 'the offense

charged was committed.'" State v. Abshire, 192 N.C. App. 594,

597, 666 S.E.2d 657, 660 (2008) (quoting N.C. Gen. Stat. § 15A-

924(a)(4) (2005)), rev'd on other grounds, 363 N.C. 322, 677

S.E.2d 444 (2009). Moreover, pursuant to N.C. Gen. Stat. § 15-

155 (2013), "[n]o judgment upon any indictment for felony or

misdemeanor . . . shall be stayed or reversed . . . for omitting

to state the time at which the offense was committed in any case

where time is not of the essence of the offense, nor for stating
 -8-
the time imperfectly . . . ." See also McKinney, 110 N.C. App.

at 370-71, 430 S.E.2d at 303 ("If time is not of the essence of

the offense charged, the failure to state the time at which the

offense was committed, or stating the time imperfectly, is not

grounds for dismissal of the indictment.").

Here, defendant contends that under N.C. Gen. Stat. § 14-

208.11, "the timing of [the] offense is a specific element,"

pointing to the requirement in N.C. Gen. Stat. § 14-208.9 (2013)

that a registered sex offender notify the sheriff of any change

in address "'not later than the third business day after the

change . . . .'" (Quoting N.C. Gen. Stat. § 14-208.9(a).)

Defendant then argues that the indictment was flawed because "it

alleged a window of nearly five months during which [defendant]

could have committed a crime involving a three day threshold.

As such, it failed to properly advise [defendant] of the time

period in which he was alleged to have committed the crime in

question." We disagree.

This Court has recognized that some aspect of "time" may be

an element of a crime and yet the "date of the offense" need not

be perfectly alleged in the indictment. For example,

"[a]lthough nighttime is clearly 'of the essence' of the crime

of burglary, an indictment for burglary is sufficient if it

avers that the crime was committed in the nighttime." State v.
 -9-
Mandina, 91 N.C. App. 686, 690, 373 S.E.2d 155, 158 (1988).

This Court held that despite the obvious time requirement for

the offense of burglary, the failure to allege the specific year

that the burglary allegedly occurred did not render the

indictment fatally defective. Id. ("Therefore, failure to

allege the hour the crime was committed, or the specific year,

is not grounds for arrest of judgment." (internal citations

omitted)).

In this case, as in Mandina, the time element -- the

requirement that the sheriff be notified within three business

days of a change of address -- does not make the specific day or

year an essential element of the crime. It does not matter when

the crime occurred so long as the evidence shows that the

defendant did not give the proper notification. We, therefore,

hold, consistent with Mandina, that an indictment under N.C.

Gen. Stat. § 14-208.11 is sufficient if it alleges, as the

indictment did in this case, the pertinent time element: that

the defendant did not notify the sheriff within three business

days of the change of address.

While defendant argues that the indictment failed to

properly advise him of the time period in which the State

alleged he committed the offense, he does not make any specific

argument that he was misled. If time is not of the essence for
 -10-
a crime, a defendant is entitled to dismissal only "[w]hen . . .

the defendant relies on the date set forth in the indictment to

prepare his defense, and the evidence produced by the State

substantially varies to the prejudice of the defendant . . . ."

State v. Stewart, 353 N.C. 516, 518, 546 S.E.2d 568, 569 (2001).

See also State v. Johnson, 145 N.C. App. 51, 57, 549 S.E.2d 574,

578 (2001) ("When time is not of the essence of the crime

charged, . . . the State is not required to forecast exact dates

and times in its indictments.").

At trial, defendant presented the testimony of Ms. Blevins

to show that he was living at 107-D Ross Street throughout the

time period set out in the indictment to counter the State's

allegation that he had moved from that address. Further,

defendant did not try at all to show that he had registered an

address subsequent to vacating 107-D Ross Street. Thus,

defendant has not demonstrated that he relied to his detriment

on the timeframe set forth in the indictment. See State v.

Sinclair, 43 N.C. App. 709, 713-14, 259 S.E.2d 808, 810-11

(1979) ("Defendant argues that time was of the essence here

because there were two break-ins on successive nights and the

items defendant confessed to stealing were taken on the second

night, while the indictment charged him with the theft on the

first night. . . . In view of the fact that defendant has not
 -11-
relied upon an alibi for either of the nights in question, and

that there was some evidence from which the jury could find that

the items defendant confessed to stealing were taken in the

first break-in, we find no fatal variance.").

Because time is not of the essence with respect to N.C.

Gen. Stat. § 14-208.11(a)(2) and because defendant has not shown

that he relied to his detriment on the time frame alleged in the

indictment, he has failed to show that the indictment was

fatally defective. The trial court, therefore, properly denied

his motion to dismiss.

II

Defendant next contends that the trial court erred in

denying his motion to dismiss for insufficient evidence. "This

Court reviews the trial court's denial of a motion to dismiss de

novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33

(2007). "When reviewing a defendant's motion to dismiss a

charge [for insufficient] evidence, this Court determines

whether the State presented substantial evidence in support of

each element of the charged offense." Abshire, 363 N.C. at 327-

28, 677 S.E.2d at 449 (internal quotation marks omitted).

"Substantial evidence is relevant evidence that a reasonable

person might accept as adequate, or would consider necessary to

support a particular conclusion. In this determination, all
 -12-
evidence is considered in the light most favorable to the State,

and the State receives the benefit of every reasonable inference

supported by that evidence." Id. at 328, 677 S.E.2d at 449

(internal citation and quotation marks omitted).

Here, Deputy Fisher testified that when he arrived at 107-D

Ross Street, defendant's last registered address, looking for

defendant on 8 September 2011, there was no answer at the

trailer. The owner of the trailer park testified that defendant

was actually living at 109-D Ross Street in the summer of 2011,

that he had been evicted for not paying his rent, and that

defendant was only "hanging out" at 107-D Ross Street. Five

days after Deputy Fisher visited the registered address,

defendant was found at another location where defendant admitted

he was staying.

Although there was some confusion in the State's evidence

as to where defendant was living in the summer of 2011 and what

trailer was vacant and for rent, the State's evidence, when

viewed in the light most favorable to the State, was sufficient

to allow a reasonable jury to find that defendant changed his

address and failed to notify the sheriff's office of the change

within three business days. See id. at 333, 677 S.E.2d at 452

(holding evidence sufficient that defendant changed address when
 -13-
jury could conclude defendant was temporarily living somewhere

and not living at last registered address).

Pointing to the disparity between Deputy Fisher's, Mr.

Norman's, and Ms. Blevins' testimony, defendant argues that

"[w]here a man's liberty is at stake, he surely should get the

benefit of any serious doubt. And here, there is clearly very

serious doubt as to the sufficiency of the evidence." However,

"'[e]videntiary [c]ontradictions and discrepancies are for the

jury to resolve and do not warrant dismissal.'" State v. Bunn,

173 N.C. App. 729, 732, 619 S.E.2d 918, 921 (2005) (quoting

State v. Garcia, 358 N.C. 382, 413, 597 S.E.2d 724, 746 (2004)).

It is well established that "[t]he existence of evidence

contrary to the State's evidence is not controlling in ruling on

a motion to dismiss." State v. Bell, 159 N.C. App. 151, 158,

584 S.E.2d 298, 303 (2003).

Defendant also contends that there was insufficient

evidence because the State did not establish any specific dates

on which defendant moved from 107-D Ross Street to a new

address. Notably, after Deputy Fisher failed to find defendant

at his registered address, defendant was located five days later

at another address where defendant said he was staying. Because

a specific date on which a defendant moved is not essential to

prove a violation of N.C. Gen. Stat. § 14-208.11, but rather the
 -14-
State need only prove that defendant failed to register within

three business days of moving, the State's evidence was

sufficient. See also State v. Wise, 178 N.C. App. 154, 164, 630

S.E.2d 732, 738 (2006) (holding that evidence was sufficient to

permit jury to infer that defendant had not given sheriff notice

of change of address within 10 days, as required under prior

statute, where although State presented no evidence of when

defendant actually moved, defendant admitted that he had left

registered address, had lived at two other addresses, but had

"'lately'" been staying at address where he was arrested). We,

therefore, hold that the trial court did not err in denying

defendant's motions to dismiss.

III

Defendant finally argues that the trial court erred by

failing to instruct the jury that it should only consider the

evidence after 29 June 2011 in deciding whether defendant failed

to give proper notice of his change of address. Defendant

argues that although "the indictment lists a range of time going

back to April 2011[,]" the trial court stated: "Well, . . . the

only thing that would be submitted would be anything following

July 11th, 2011, I believe -- July 11 or June 29, 2011[.]" Yet,

defendant points out, the trial court did not specify any

timeframe in its jury instructions or on the verdict sheet.
 -15-
Although defendant concedes that he failed to object to the

instructions at trial, defendant contends any alleged error is

preserved for appellate review because it implicates defendant's

right to a unanimous jury verdict, and such issues are

automatically preserved. See State v. Mueller, 184 N.C. App.

553, 575, 647 S.E.2d 440, 456 (2007) ("A defendant's failure to

object at trial to a possible violation of his right to a

unanimous jury verdict does not waive his right to appeal on the

issue, and it may be raised for the first time on appeal.").

Alternatively, defendant suggests that the failure to

narrow the time period under consideration for the alleged

offense to the period after 29 June 2011 amounted to plain error

because it permitted the jury to convict defendant upon an

abstract theory not supported by the indictment. Our Supreme

Court has explained:

For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To
show that an error was fundamental, a
defendant must establish prejudice -- that,
after examination of the entire record, the
error had a probable impact on the jury's
finding that the defendant was guilty.
Moreover, because plain error is to be
applied cautiously and only in the
exceptional case, the error will often be
one that seriously affect[s] the fairness,
integrity or public reputation of judicial
proceedings[.]
 -16-
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal citations and quotation marks omitted).

With respect to both the unanimity argument and the plain

error argument, defendant contends: "[T]he trial court

determined that the only sufficient evidence of a crime related

to possible offenses committed after 29 June 2011, but never

instructed the jury as such, even though the indictment lists a

range of time going back to April 2011. For that reason, it is

possible that one or more jurors voted to convict [defendant] on

a theory that was unsupported by sufficient evidence." However,

although defendant's contention thus hinges on the time frame

set out in the indictment, the indictment containing the period

from April to 8 September 2011 was not admitted into evidence.

Moreover, the State never referenced, in the presence of

the jury, any time period during which the offense could have

occurred. Instead, the State's evidence focused on the fact

that a deputy unsuccessfully attempted to locate defendant at

his registered address on 8 September 2011, learned from the

landlord that defendant was no longer living there and been gone

for a while, and then found defendant at a different address

five days later on 13 September 2011. As such, defendant has

not demonstrated how the jury's verdict could lack unanimity

absent even a suggestion to the jury that defendant could have
 -17-
committed the offense prior to the date he was found missing

from his registered address.

Additionally, in State v. Pettis, 186 N.C. App. 116, 123,

651 S.E.2d 231, 235 (2007), a case involving multiple charges

alleged in multiple indictments, this Court explained that

there was no problem with the unanimity of
the jury's verdicts. The jury was
instructed on all the issues, including
unanimity. The trial court states that the
jury's verdicts must be unanimous by
stating, "You may not return a verdict until
all 12 jurors agree unanimously." Separate
verdict sheets were submitted for each
charge. In addition, two verdict sheets
were used for the two statutory rape charges
and were differentiated by the date of the
alleged offense. Further, the record does
not reflect that the jury was confused.

Here, there was only one charge and defendant does not now argue

that the trial court insufficiently instructed the jury

concerning the elements of the crime charged under N.C. Gen.

Stat. § 14-208.11(a)(2). The trial court explained to the jury

that "[t]he State must prove to you that the defendant is guilty

beyond a reasonable doubt" and "[y]ou must be unanimous in your

decision." The record does not in any way indicate that the

jury was confused when it deliberated.

Consistent with Pettis, we conclude that defendant has

failed to show that his right to a unanimous jury verdict was

threatened by the trial court's jury instruction. Likewise,
 -18-
defendant has not shown that any instructional error had a

probable impact on the jury's verdict, but instead contends only

that "it is possible that one or more jurors voted to convict

[defendant] on a theory that was unsupported by sufficient

evidence." (Emphasis added.) Consequently, we hold that

defendant has not demonstrated that the trial court erred when

it failed to instruct the jury that it could only find a

violation if it occurred after 29 June 2011.

No error.

Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).