COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges McCullough and Decker
PUBLISHED
Argued at Chesapeake, Virginia
CARLTON SHELL
OPINION BY
v. Record No. 2070-13-1 CHIEF JUDGE WALTER S. FELTON, JR.
OCTOBER 28, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Karen J. Burrell, Judge
J. Barry McCracken, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Leah A. Darron, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Carlton Shell (“appellant”) was convicted by the Circuit Court of the City of Norfolk
(“trial court”) for failing to register as a sex offender or providing false information, second or
subsequent offense, in violation of Code § 18.2-472.1. On appeal, he asserts that the trial court
erred in denying his motion to strike the Commonwealth’s evidence. Specifically, he claims the
Commonwealth’s evidence failed to establish that he had previously been convicted of an
offense that required him to register as a sex offender. For the following reasons, we affirm
appellant’s conviction.
I. BACKGROUND
At trial, the Commonwealth presented three certified orders showing that appellant had
previously pled guilty, in the Circuit Court for the City of Chesapeake, to two charges of failure
to reregister as a sex offender, in violation of Code § 18.2-472. The third order showed he had
been convicted of one charge of failure to reregister as a sex offender, in violation of Code
§ 18.2-472 in the Circuit Court for the City of Norfolk. The two Chesapeake Circuit Court
orders note that the offenses occurred on April 1, 2008 and June 2, 2008.1 The Norfolk Circuit
Court order notes that offense occurred on January 12, 2009. All three orders reflect appellant
was present in court with counsel.
The Chesapeake Circuit Court orders show appellant entered his guilty “[p]lea[s]
voluntarily and intelligently . . . after [appellant] was apprised of his right against compulsory
self-incrimination and his right to confront the witnesses against him.” Specifically, the
Chesapeake Circuit Court orders stated that appellant:
[D]id unlawfully in violation of Section 18.2-472.1, Code of
Virginia: as a person subject to Chapter 9 [§ 9.1-900 et seq.] of
Title 9.1, but who had not been convicted of a sexually violent
offense or murder as defined in § 9.1-902, knowingly fail to
reregister with the Sex Offender and Crimes Against Minors
Registry.
The order from the Norfolk Circuit Court, entered April 23, 2009, additionally charged,
“The accused previously has committed an offense under Subsection A of 18.2-427.1,” reflecting
the charged offense to be a second or subsequent offense, and therefore a felony. The Norfolk
Circuit Court reduced appellant’s charge to misdemeanor failure to register as a sex offender.
Kai Wiggins, custodian of the records for the Virginia State Police Sex Offender Crimes
Against Minors Registry (“the Registry”), testified that any person convicted of an offense
designated in Code § 9.1-902 is required to register as a sex offender, and when registering, the
offender signs a disclosure statement acknowledging this responsibility. Code § 9.1-902 also
requires convicted sex offenders to reregister any change of residence or work address within
three days of the change.
1
On December 18, 2008, appellant was sentenced on both offenses by the Chesapeake
Circuit Court.
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The requisite disclosure form signed by appellant on September 26, 2012 was entered
into evidence. Appellant’s disclosure form shows that on September 26, 2012, he registered
indicating he resided at 1107 Jernigan Avenue, Apartment E, Norfolk, VA 23513. The next
registration appellant submitted indicated he resided at 811 E. City Hall Avenue in Norfolk on
February 25, 2013. On March 14, 2013, appellant registered his address as 6437 Whittier Street,
Norfolk. Appellant did not submit any change of address forms to the registry between
September 26, 2012 and February 25, 2013.
Between September 2012 and February 2013, Virginia State Trooper Michael Dooley
worked as an investigator for the Registry. His duties included verifying that offenders were
living at their registered addresses and that the offenders were following through on their
obligation to reregister any changes in their residences. Trooper Dooley had previously arrested
appellant for failing to comply with the Registry’s reregistration requirements and had advised
appellant of his requirements to reregister.
On February 25, 2013, Trooper Dooley was investigating appellant for failing to
reregister. He spoke to appellant at his place of employment. At that time, appellant stated he
was living at 6437 Whittier Street in Norfolk. He said he had moved out of an apartment at 1107
Jernigan Avenue in Norfolk approximately three weeks prior to the February 25, 2013 interview.
He stated he understood that he was registered with the Registry and that he was required to
report a change of address within three days. Appellant admitted to Trooper Dooley that he was
not in compliance with his requirement to reregister when he changed his residence. He said he
had not completed a change of address form when he moved because he “didn’t get around to it.
[He’d] been busy.”
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Rakira Bostic testified she had resided at 1107 Jernigan Avenue, Apartment E, Norfolk,
Virginia since approximately January 16, 2013. She stated that she had two roommates, that she
had never met appellant, and that appellant was not one of her roommates.
II. ANALYSIS
On appeal, appellant contends the trial court erred in denying his motion to strike the
Commonwealth’s evidence, asserting that the evidence failed to establish that he had been
previously convicted of an offense requiring him to register as a sex offender.
“‘Under well-settled principles of appellate review, we consider the evidence presented at
trial in the light most favorable to the Commonwealth, the prevailing party below.’” Smallwood
v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v.
Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). “‘We also accord the
Commonwealth the benefit of all inferences fairly deducible from the evidence.’” Id. (quoting
Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004)). “‘When reviewing the
sufficiency of the evidence to support a conviction, the Court will affirm the judgment unless the
judgment is plainly wrong or without evidence to support it.’” Id. (quoting Bolden, 275 Va. at
148, 654 S.E.2d at 586).
In our review of a challenge to a criminal conviction, “‘[w]here the issue is whether the
evidence is sufficient, we view the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Baylor v. Commonwealth,
55 Va. App. 82, 84, 683 S.E.2d 843, 844 (2009) (quoting Sandoval v. Commonwealth, 20
Va. App. 133, 135, 455 S.E.2d 730, 731 (1995)).
Code § 18.2-472.1(A) provides:
Any person subject to Chapter 9 (§ 9.1-900 et seq.) of Title
9.1, other than a person convicted of a sexually violent offense or
murder as defined in § 9.1-902, who knowingly fails to register or
reregister, or who knowingly provides materially false information
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to the Sex Offender and Crimes Against Minors Registry is guilty
of a Class 1 misdemeanor. A second or subsequent conviction for
an offense under this subsection is a Class 6 felony.
Code § 9.1-902(B)(2) sets out the offenses for which registration as a sexual offender is required,
including:
Where the victim is a minor or is physically helpless or mentally
incapacitated as defined in § 18.2-67.10, . . . subsection A of
§ 18.2-47 [abduction], clause (i) of § 18.2-48 [abduction with
intent to extort money or pecuniary benefit] . . . .
The Commonwealth presented sufficient evidence to prove appellant was required to
reregister as a convicted sex offender. His 2008 and 2009 misdemeanor convictions for failing
to reregister as a sex offender clearly state appellant entered guilty pleas to both charges. As
noted by the trial court, “[h]e wasn’t required to [plead guilty], but he did. And in doing so, he
acknowledged that he was a person subject to registration . . . .” Furthermore, appellant admitted
to Trooper Dooley that he understood he was registered with the Registry and that he was
required to reregister whenever he changed his residence. Appellant said he had not completed a
change of address form when he moved because he “didn’t get around to it. [He’d] been busy.”
A presumption of regularity attends appellant’s prior convictions for failing to reregister
as a sex offender as “every act of a court of competent jurisdiction shall be presumed to have
been rightly done ‘till the contrary appears.’” Farmer v. Commonwealth, 62 Va. App. 285,
289-90, 746 S.E.2d 504, 506 (2013) (quoting Nicely v. Commonwealth, 25 Va. App. 579, 584,
490 S.E.2d 281, 283 (1997)). Appellant did not challenge his previous convictions for failing to
reregister as a sex offender and cannot collaterally attack those convictions in this appeal.
From the record before us on appeal, we conclude that the trial court did not err in finding
the evidence was sufficient to find appellant guilty of failing to register as a sex offender or
providing false information, second or subsequent offense, in violation of Code § 18.2-472.1.
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III. CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
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