IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-39
Filed: 6 October 2015
Sampson County, No. 13 CRS 51171
STATE OF NORTH CAROLINA
v.
JIMMIE RODGERS MCLAMB
Appeal by defendant from judgment entered 21 July 2014 by Judge Phyllis M.
Gorham in Sampson County Superior Court. Heard in the Court of Appeals
13 August 2015.
Attorney General Roy Cooper, by Assistant Attorney General Hal F. Askins, for
the State.
Guy J. Loranger for defendant-appellant.
McCULLOUGH, Judge.
Jimmie Rodgers McLamb (“defendant”) appeals from judgment entered upon
his conviction for failure to register as a sex offender. On appeal, defendant contends
that the indictment was insufficient to confer subject matter jurisdiction upon the
trial court. For the following reasons, we find no error.
I. Background
On 13 June 2007, defendant pleaded guilty to sexual battery in violation of
N.C. Gen. Stat. § 14-27.5A(a) in Duplin County Superior Court. As a result of this
STATE V. MCLAMB
Opinion of the Court
conviction, defendant was required to register as a sex offender under N.C. Gen. Stat.
§ 14-208.7 et seq. Defendant was later arrested on 21 May 2013 by Captain Julian
Carr of the Sampson County Sheriff’s Office during “Operation Southern Watch,” an
initiative under the Sampson County Sheriff’s Office Registering Verification
Campaign. On 16 October 2013, a Sampson County Grand Jury indicted defendant
for failure to register as a sex offender in violation of N.C. Gen. Stat. § 14-208.11.
Defendant pleaded not guilty and his case was called for trial in Sampson County
Superior Court before the Honorable Phyllis M. Gorham on 21 July 2014.
At trial, the State presented evidence tending to establish the following facts:
On 21 May 2013, defendant was discovered residing at 206 Smith Key Lane in
Clinton. Defendant had previously been evicted in December 2012 from the address
where he last registered, 1134 Renfrow Road in Clinton. After a period of
homelessness, defendant moved to 206 Smith Key Lane sometime in January 2013,
where he had taken residence for approximately four months.
Before his 21 May 2013 arrest, defendant was first registered with the Duplin
County Sheriff’s Office on 20 June 2007. On 1 May 2009, defendant moved to
Sampson County and updated his address with the Sampson County Sheriff’s Office.
On 1 April 2011, defendant acknowledged his duty to register and initialed his
understanding for each of the registration requirements on State Bureau of
Investigation (S.B.I.) Form CIIS – 65, Sex Offender Duty to Register Offender
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Opinion of the Court
Acknowledgement. This acknowledgement was completed and signed by defendant
at the Sampson County Sheriff’s Office. On 21 September 2012, defendant moved
within Sampson County to 1134 Renfrow Road and again updated his address with
the Sampson County Sheriff’s Office. This was the last address defendant registered
before his arrest. On 12 March 2013, the S.B.I. mailed a Verification of Information
letter to defendant. On 18 March 2013, defendant brought the letter to the Sampson
County Sheriff’s Office and signed the document to certify that his address
information and all information provided on file was true and complete. Daomi
Strickland, Supervisor of Sampson County Sheriff’s Office clerical staff, testified at
trial that when defendant verified his address on 18 March 2013, he affirmed that he
still lived at 1134 Renfrow Road and did not change his address.
At the close of the State’s evidence, defendant moved to dismiss the charges,
and the motion was denied by the trial court. Defendant testified on his own behalf
and disputed the dates and locations to where he moved after his December 2012
eviction and his understanding of his ongoing duty to register as a sex offender.
Defendant acknowledged in his testimony that he no longer lived at his last registered
address and that he did not update the Sampson County Sheriff’s Office after his
eviction. Defendant also testified that he did not provide an updated address on
18 March 2013 when he reported to the Sheriff’s Office to verify his information. After
the completion of his testimony, defendant did not present additional evidence.
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Opinion of the Court
Defendant instead renewed his motion to dismiss the charges. The trial court denied
defendant’s motion and gave the case to the jury.
After a period of deliberation, the jury returned a verdict finding defendant
guilty of failure to register as a sex offender. The trial court then entered judgment
sentencing defendant in the mitigated range to a term of 17 to 30 months
imprisonment, awarding credit for 254 days of pre-trial confinement. Defendant gave
oral notice of appeal in open court.
II. Discussion
Now on appeal, defendant argues that the trial court lacked subject matter
jurisdiction where the indictment charging him with failure to register as a sex
offender lacked allegations that he failed to provide “written notice” of his address
change “within three business days” of the change. Consequently, defendant argues
that his indictment was fatally flawed and his conviction must be vacated. We
disagree.
Our Court reviews the sufficiency of an indictment under the de novo standard.
State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009). N.C. Gen. Stat.
§ 15A–924(a)(5) requires an indictment to contain
[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.
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Opinion of the Court
N.C. Gen. Stat. § 15A–924(a)(5) (2013). Our Supreme Court has stated that an
indictment “is sufficient if it charges the offense in a plain, intelligible and explicit
manner.” State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972). The
purposes of the indictment are “to identify clearly the crime being charged, thereby
putting the accused on reasonable notice to defend against it and prepare for trial,
and to protect the accused from being jeopardized by the State more than once for the
same crime.” State v. Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981). “An
indictment couched in the language of the statute is generally sufficient to charge the
statutory offense.” State v. Singleton, 85 N.C. App. 123, 126, 354 S.E.2d 259, 262
(1987) (citing State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977)). It is also
generally true that indictments need only allege the ultimate facts constituting the
elements of the criminal offense. Id. Further, “[o]ur courts have recognized that[,]
while an indictment should give a defendant sufficient notice of the charges against
him, it should not be subjected to hyper technical scrutiny with respect to form.” State
v. Harris, 219 N.C. App. 590, 592, 724 S.E.2d 633, 636 (2012).
The three essential elements of the offense described in N.C. Gen. Stat. § 14-
208.9 are: (1) the defendant is a person required to register; (2) the defendant changes
his or her address; and (3) the defendant fails to notify the last registering sheriff of
the change of address within three business days of the change.” State v. Barnett,
223 N.C. App. 65, 69, 733 S.E.2d 95, 98 (2012). In this case, defendant’s argument
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Opinion of the Court
on appeal only challenges the sufficiency of the indictment relating to the third
element. It is clear the first two elements are sufficiently alleged.
Although an unpublished opinion of this Court does not constitute controlling
legal authority, see N.C. R. App. P. 30(e)(3) (2015), on appeal, defendant primarily
relies on this Court’s unpublished decision in State v. Osborne, No. COA 13-1372,
2014 N.C. App. LEXIS 700, 2014 WL 2993855 (N.C. App. July 1, 2014). In Osborne,
this Court determined an indictment for failure to register was fatally defective
because “(1) it [did] not allege that [the defendant] failed to notify the [sheriff’s office]
in writing, and (2) it [did] not specify the time requirement as within three business
days of [the defendant’s] move to a new address.” Id. 2014 N.C. App. LEXIS 700, at
*8, 2014 WL 2993855, at *3 (emphasis in original). As this Court has recognized,
“[i]n effect, the Osborne Court imposed two additional essential elements of the
offense set forth in N.C. Gen. Stat. § 14–208.9(a)—the ‘written notice’ requirement
and the ‘three business days’ requirement.” State v. Leaks, __ N.C. App. __, __, 771
S.E.2d 795, 798 (emphasis omitted), disc. review denied, __ N.C. __, __ S.E.2d __
(2015).
Similar to Osborne, defendant contends the indictment in the present case was
insufficient because it lacked allegations that he failed to provide “written notice” of
his address change “within three business days.” We are not persuaded.
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Opinion of the Court
Since Osborne, this Court has issued separate opinions rejecting the notions
that the ‘written notice’ requirement and the ‘three business days’ requirement are
essential to the validity of an indictment. See Leaks, __ N.C. App. at __, 771 S.E.2d
at 799 (holding the failure to provide in the indictment that notice of a change of
address must be made in “writing” did not constitute a fatal defect), State v. James,
__ N.C. App. __, __ S.E.2d __ (July 7, 2015) (holding the failure to provide in the
indictment that notice of a change of address must be made within three “business”
days did not constitute a fatal defect). In both cases, this Court emphasized that
Osborne was not binding and held the essential elements of the offense of failure to
report a change of address as a sex offender were sufficiently alleged in the
indictments to put the defendants on notice of the charge against them.1
In line with this Court’s recent published cases, we hold the indictment in this
case, which alleged “defendant . . . did, as a person required by Article 27A of Chapter
14 of the General Statutes to register, failed to notify the last registering sheriff of a
change of address in that he moved from 1134 Renfrow Road in Clinton, North
Carolina, on or about December 18, 2012 to 206 Smith Key Lane in Clinton, North
Carolina without notifying the Sampson County Sheriff[,]” was couched in the
1 Despite the fact that Osborne is unpublished and not binding, we further note that it is easily
distinguished from the present case because the statutory reference in the indictment in Osborne,
which alleged a violation of N.C. Gen. Stat. § 14-208.11A(2), did not correspond to the charging
language, which clearly attempted to allege a violation of N.C. Gen. Stat. § 14-208.11(a)(2). Osborne,
2014 N.C. App. LEXIS 700, at *8, 2014 WL 2993855, at *3.
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Opinion of the Court
language of the statute and sufficiently alleged the third element of the offense. To
hold otherwise would be to subject the indictment to hyper technical scrutiny where
in this case, over a period of months, defendant failed to give any notice to the sheriff
of his change of address.
As stated earlier, the purpose of the indictment is to provide notice so that a
proper defense can be prepared. Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731.
Defendant did not argue at trial, nor has he convinced this Court on appeal, that his
trial preparation was in any way prejudiced. We take notice from the record that
defendant had actual notice of the requirements of the statute and that he
acknowledged those requirements on prior occasions. Furthermore, the record shows
that following prior changes of address, defendant notified the Sheriff’s Office in
accordance with the statutory requirements. After a careful review of the record and
the issues presented, this Court sees no valid basis to hold that the indictment was
fatally flawed.
III. Conclusion
While we note that the better practice would have been for the indictment to
have alleged that defendant failed to report his change of address “in writing” and
“within three business days,” for the reasons discussed above, we hold that the
indictment was sufficient to confer subject matter jurisdiction upon the trial court.
NO ERROR.
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Judges STROUD and INMAN concur.
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