State v. Williams

IN THE SUPREME COURT OF NORTH CAROLINA

No. 333PA14

Filed 29 January 2016

STATE OF NORTH CAROLINA

v.
RYAN MATTHEW WILLIAMS

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,

unpublished decision of the Court of Appeals, ___ N.C. App. ___, 763 S.E.2d 926

(2014), finding no error after appeal of a judgment entered on 7 June 2013 by Judge

Eric L. Levinson in Superior Court, Burke County. Heard in the Supreme Court on

17 March 2015.

Roy Cooper, Attorney General, by William P. Hart, Jr., Assistant Attorney
General, for the State.

Ryan McKaig for defendant-appellant.

EDMUNDS, Justice.

As a registered sex offender, defendant Ryan Matthew Williams was required

to report to the appropriate sheriff when he changed his address. He was convicted

of failing to make such a report. Before this Court, defendant argues that the

indictment failed to allege properly the time period within which he was required to

file the report. We conclude that the indictment adequately apprised defendant of

the conduct that was the basis of the charge against him. Accordingly, we affirm the
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Opinion of the Court

ruling of the Court of Appeals that the trial court correctly denied defendant’s motion

to dismiss.

Ryan Matthew Williams was convicted of indecent liberties with a minor on 15

March 2001 and, as a result, is a registered sex offender subject to the requirements

of N.C.G.S. §§ 14-208.9 and 14-208.11. Defendant maintained his registration with

the Burke County Sheriff’s Office and reported several changes of address. Evidence

presented at defendant’s trial indicated that from 17 February 2010 to 5 April 2011,

defendant’s registered address was 107-D Ross Street in Morganton, where he lived

with Sunshine Blevins. In April 2011, defendant and Blevins moved to 2022 Bristol

Creek Avenue in Morganton and registered that address with the Burke County

Sheriff’s Office. In June 2011, defendant left the Bristol Creek Avenue home for 107-

D Ross Street, Morganton, a move he registered on 29 June 2011.

On 8 September 2011, Deputy Sheriff Chuck Fisher went to defendant’s last

registered address at 107-D Ross Street. When no one answered his knock, Deputy

Fisher contacted the property owner, Tim Norman, who reported that defendant had

been living at a different address, 109-D Ross Street. Other evidence indicated that

defendant had never resided at 107-D Ross Street. Norman advised Deputy Fisher

that defendant stopped paying rent for the 109-D Ross Street residence and had

vacated the premises in late July 2011 after Norman demanded that he either pay up

or leave. At least six weeks passed after defendant’s departure before Deputy Fisher

came searching for him. Defendant was arrested on 13 September 2011.

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Opinion of the Court

On 5 October 2011, defendant was indicted by a Burke County Grand Jury for

violating N.C.G.S. § 14-208.11 by failing to provide timely written notice of his change

of address. The indictment included a preprinted block containing information in the

following format:

DATE OF OFFENSE ON OR ABOUT

09/08/2011 - after 4/2011

The body of the indictment beneath this block did not include a date but instead

alleged that “on or about the date of offense shown,” defendant committed the charged

crime.

Defendant filed a motion to dismiss the indictment on the grounds that “it does

not allege a specific enough date of offense to allow the Defendant to formulate a

defense and is violative of his due process rights.” After considering arguments

presented by counsel for both sides, the trial court denied defendant’s motion to

dismiss. On 7 June 2013, a jury found defendant guilty and the trial court imposed

a sentence in the presumptive range of twenty-three to twenty-eight months of

imprisonment.

Defendant appealed to the Court of Appeals, challenging the sufficiency of the

indictment. State v. Williams, ___ N.C. App. ___, 763 S.E.2d 926, 2014 WL 3824252

(2014) (unpublished). He argued that the indictment was fatally defective because it

identified the date of offense as a five month span, and that, because the indictment

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Opinion of the Court

was defective, the trial court lacked jurisdiction to hear his case. Id. at *3. The Court

of Appeals concluded that section 14-208.9(a)’s requirement that defendant register

a new address within three business days of the change “does not make the specific

day or year an essential element of the crime.” Id. at *4. The court held that the

indictment sufficiently alleged that defendant failed to notify the sheriff’s office of a

change of address within the prescribed statutory time period. Id. The court further

held that defendant failed to demonstrate that he was misled by the times set out in

the indictment and that no basis existed for concluding the indictment was fatally

defective. Id. Consequently, the trial court properly denied the motion to dismiss.

Id. On 9 October 2014, this Court allowed defendant’s Petition for Discretionary

Review.

Although defendant argued to the trial court and the Court of Appeals that the

time span alleged in the indictment rendered it defective, he takes a different tack

before us. Defendant contends his constitutional right to notice was violated because

the indictment alleged that he failed to register his change of address with the

sheriff’s office within three days, rather than within three business days. Defendant

made the latter argument in his Petition for Discretionary Review while candidly

acknowledging that he had not raised it below. We will consider the petition because

conflicting analyses of this issue may be found in opinions of the Court of Appeals.

“[W]here an indictment is alleged to be invalid on its face, thereby depriving

the trial court of its jurisdiction, a challenge to that indictment may be made at any

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Opinion of the Court

time, even if it was not contested in the trial court.” State v. Wallace, 351 N.C. 481,

503, 528 S.E.2d 326, 341 (citations omitted), cert. denied, 531 U.S. 1018, 121 S. Ct.

581, 148 L. Ed. 2d 498 (2000). The alleged failure of a criminal pleading to charge

the essential elements of a stated offense is an error of law that this Court reviews

de novo. See State v. Sturdivant, 304 N.C. 293, 308-11, 283 S.E.2d 719, 729-31 (1981).

The North Carolina Constitution guarantees that, “[i]n all criminal

prosecutions, every person charged with crime has the right to be informed of the

accusation.” N.C. Const. art. I, § 23. Ordinarily, a person accused of a felony is

charged by means of an indictment, which must 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.

N.C.G.S. § 15A-924(a)(5) (2013). In interpreting this statute, we have held that “it is

not the function of an indictment to bind the hands of the State with technical rules

of pleading,” Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731 (citing State v. Gregory,

223 N.C. 415, 27 S.E.2d 140 (1943)), and that we are no longer bound by the “ancient

strict pleading requirements of the common law,” State v. Freeman, 314 N.C. 432,

436, 333 S.E.2d 743, 746 (1985). Instead, contemporary criminal pleadings

requirements have been “designed to remove from our law unnecessary technicalities

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Opinion of the Court

which tend to obstruct justice.” Id. Consistent with this retreat from archaic pleading

standards, the General Assembly has provided that

[e]very criminal proceeding by . . . indictment . . . is
sufficient in form for all intents and purposes if it expresses
the charge against the defendant in a plain, intelligible,
and explicit manner; and the same shall not be quashed,
nor the judgment thereon stayed, by reason of any
informality or refinement, if in the bill or proceeding,
sufficient matter appears to enable the court to proceed to
judgment.

N.C.G.S. § 15-153 (2013). We now consider whether defendant’s indictment passes

muster.

The indictment alleged that defendant violated N.C.G.S. § 14-208.11, which

states, in pertinent part, that: “A person required by this Article to register who

willfully does any of the following is guilty of a Class F felony: . . . (2) Fails to notify

the last registering sheriff of a change of address as required by this Article.”

N.C.G.S. § 14-208.11(a)(2) (2013). Defendant’s indictment cited “G.S. 14-208.11” and

alleged that “defendant named above unlawfully, willfully, and feloniously did as a

person required by Article 27A of Chapter 14 of the North Carolina General Statutes

to register with the Sheriff’s office in the county wherein he resides . . . failed [sic] to

provide written notice of his change of address no later than the 3rd day after his

change in address . . . . This act was in violation of the law referenced above.”

Details of the registration requirements are set out in N.C.G.S. § 14-208.9,

which states that “[i]f a person required to register changes address, the person shall

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Opinion of the Court

report in person and provide written notice of the new address not later than the third

business day after the change to the sheriff of the county with whom the person had

last registered.” Id. § 14-208.9(a) (2014). Defendant acknowledges that he was

required to register, but contends that the indictment is fatally defective because it

omitted the word “business” as found in section 14-208.9(a).

Defendant cites State v. Abshire for the proposition that “three business days”

is an essential element of the offense. 363 N.C. 322, 677 S.E.2d 444 (2009). In

Abshire, we addressed an earlier version of the statute at bar and stated that the

third element of the offense was that “the defendant ‘[f]ails to notify the last

registering sheriff of [the] change of address,’ [N.C.G.S. § 14-208.11(a)(2)], ‘not later

than the tenth day after the change,’ N.C.G.S. § 14-208.9(a).’ ” Id. at 328, 677 S.E.2d

at 449 (first and second alterations in original). However, our reference in Abshire to

the ten-day deadline was not critical to the holding in that case. Moreover, we are

reluctant to assume from Abshire that if the statute had said “ten business days,” we

would have found that the word “business” was essential to the pleading, especially

when no such issue was before us. Instead, Abshire discussed the meaning of the

term “address” in that earlier version of the statute, along with the unremarkable

requirement that essential elements be included in the indictment. Id. at 328-32, 677

S.E.2d at 449-51. Abshire did not set out specific language to be used in an indictment

alleging an offense under section 14-208.11, and the holding in that case is consistent

with the flexible pleading standards expressed in sections 15-153 and 15A-924(a).

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Opinion of the Court

Defendant also argues that the Court of Appeals holding in State v. Osborne,

___ N.C. App. ___, 763 S.E.2d 16, 2014 WL 2993855 (2014) (unpublished), entitles

him to a new trial. The defendant in Osborne was, as here, a convicted sex offender

required to register with the sheriff of his county of residence. The indictment in

Osborne alleged only that the defendant was required to register within three days of

his move to a new address. The Court of Appeals vacated the defendant’s conviction

for a violation of N.C.G.S. § 14-208.11(a)(2) on the grounds that “three days,” as

alleged in the indictment, is different from “not later than the third business day,” as

found in section 14-208.9(a). 2014 WL 2993855 at *3. In contrast, in the case at bar,

the Court of Appeals concluded that time was not of the essence for this reporting

offense and “[i]t does not matter when the crime occurred so long as the evidence

shows that the defendant did not give the proper notification.” The court then held

“that an indictment under N.C. Gen. Stat. § 14-208.11 is sufficient if it alleges . . . the

pertinent time element.” Williams, 2014 WL 3824252, at *4. In other words, the

absence of the term “business” before “days” in the indictment was found fatal in

Osborne but not in Williams.

We have found no other case in which a panel of the Court of Appeals has

adopted Osborne’s rationale. In State v. Leaks, ___ N.C. App. ___, 771 S.E.2d 795

(2015), the defendant sex offender was charged with failure to report a change of

address under N.C.G.S. § 14-208.11(a)(2). He claimed the indictment was invalid

because it failed to allege that he was required to provide “written notice” as set out

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Opinion of the Court

in N.C.G.S. § 14-208.9. Id. at ___, 771 S.E.2d at 797-98. In a published opinion, the

Court of Appeals distinguished Osborne and held that written notice was an

evidentiary matter to be proved at trial but need not be alleged in an indictment

brought under section 14-208.11. Id. at ___, 771 S.E.2d at 798-99. We denied

discretionary review. State v. Leaks, ___ N.C. ___, 775 S.E.2d 870 (2015). In State v.

Furr, ___ N.C. App. ___, 775 S.E.2d 693, 2015 WL 3791729 (2015) (unpublished), the

defendant sex offender was indicted under N.C.G.S. § 14-208.11(a)(2) for failing to

report a new address. The defendant claimed the indictment was invalid because it

did not allege that he was required to provide “written notice” within “three business

days,” as set out in N.C.G.S. § 14-208.9. 2015 WL 3791729 at *2. The Court of

Appeals declined to follow Osborne and found no error. Id. at *4. We denied

discretionary review. State v. Furr, ___ N.C. ___, 775 S.E.2d 854 (2015). In State v.

McLamb, ___ N.C. App. ___, 777 S.E.2d 150 (2015), the defendant sex offender was

charged under N.C.G.S. § 14-208.11(a)(2) with failing to register. He claimed the

indictment was invalid for failing to allege that he was required to provide “written

notice” within “three business days.” Id. at ___, 777 S.E.2d at 151. In a published

opinion, the Court of Appeals declined to follow Osborne and found no error. Id. at

___, 777 S.E.2d at 152-53.

Moreover, the Court of Appeals declined to subject indictments to the type of

hypertechnical scrutiny employed in Osborne before that opinion was issued. In State

v. Pierce, ___ N.C. App. ___, 766 S.E.2d 854 (2014), the defendant sex offender was

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Opinion of the Court

charged with failing to provide notification of an address change. He argued that the

indictment was fatally defective because it omitted the purportedly essential element

that he report to the sheriff of the new county to which he had moved. Id. at ___, 766

S.E.2d at 857. The Court of Appeals determined that the indictment, “read in

totality,” gave the defendant adequate notice. Id. at ___, 766 S.E.2d at 858. We

denied discretionary review. State v. Pierce, 368 N.C. 262, 772 S.E.2d 734 (2015). In

State v. Harrison, 165 N.C. App. 332, 598 S.E.2d 261 (2004), the defendant claimed

that the indictment charging him with failure to report was defective because it did

not identify the specific dates of the moves or the defendant’s new address. The Court

of Appeals found that the indictment provided defendant “ample notice of the charge,”

even though it did not identify the specific dates on which the defendant moved or his

new address. Id. at 336, 598 S.E.2d at 263. We denied discretionary review. State

v. Harrison, 359 N.C. 72, 604 S.E.2d 922 (2004).

Consistent with these Court of Appeals opinions, this Court has acknowledged

the general rule that an indictment using “either literally or substantially” the

language found in the statute defining the offense is facially valid and that “the

quashing of indictments is not favored.” State v. James, 321 N.C. 676, 681, 365 S.E.2d

579, 582 (1988) (citations omitted). Here, defendant’s indictment included the critical

language found in N.C.G.S. § 14-208.11, alleging that he failed to meet his obligation

to report “as a person required by Article 27A of Chapter 14.” This indictment

language was consistent with that found in the charging statute and provided

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Opinion of the Court

defendant sufficient notice to prepare a defense. Additional detail about the reporting

requirement such as that found in section 14-208.9 was neither needed nor required

in the indictment.

Because defendant’s indictment substantially tracks the language of section

14-208.11(a)(2), the statute under which he was charged, thereby providing

defendant adequate notice, we conclude that the Court of Appeals’ analysis in

Williams is consistent with the applicable statutes and holdings cited above.

Accordingly, we hold that defendant’s indictment is valid and conferred jurisdiction

upon the trial court.

AFFIRMED.

Justice ERVIN took no part in the consideration or decision of this case.

Justice BEASLEY dissenting.

The majority, in concluding that the indictment here was not facially invalid,

violates a defendant’s right to be placed on reasonable notice of the charges pending

against him. The majority incorrectly concludes that the term “business day” is not

an essential element of an indictment under N.C.G.S. § 14-208.11. Our case law

supports a defendant’s right to be placed on reasonable notice of the charges against

him and the indictment here failed to provide reasonable notice. Because subject

matter jurisdiction does not vest with the trial court under a fatally defective

indictment, I respectfully dissent.

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BEASLEY, J., dissenting

Defendant, a registered sex offender, is required to register as such pursuant

to N.C.G.S. § 14-208.11. This statute states that one who willfully “[f]ails to report

in person to the sheriff’s office” as required by sections 14-208.7, 14-208.9, and 14-

208.9A is guilty of a Class F felony. N.C.G.S. § 14-208.11(a)(7) (2013). Section 14-

208.9 sets out the specific reporting requirements and states, in relevant part, “[i]f a

person required to register changes address, the person shall report in person and

provide written notice of the new address not later than the third business day after

the change to the sheriff of the county with whom the person had last registered.” Id.

§ 14-208.9(a) (2014) (emphasis added).

I note here that defendant failed to object to the sufficiency of the indictment

in the trial court or before the Court of Appeals. Defendant now raises the argument

that the indictment was facially invalid, and therefore the trial court lacked subject

matter jurisdiction. Defendant may timely raise this jurisdictional argument for the

first time on appeal to this Court because an argument that the trial court lacked

subject matter jurisdiction may be raised at any time after a verdict. See State v.

Sturdivant, 304 N.C. 293, 307-08, 283 S.E.2d 719, 729-30 (1981); see also State v.

Harwood, ___ N.C. App. ___, ___, 777 S.E.2d 116, 118 (2015) (“The issue of a court's

jurisdiction over a matter may be raised at any time, even for the first time on appeal

or by a court sua sponte.”). While it appears defendant raised an argument under

the North Carolina Constitution, his analysis is consistently grounded in the

interpretation of section 14-208.9. Further, given the conflicting analyses in recent

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BEASLEY, J., dissenting

Court of Appeals opinions, this Court properly addresses defendant’s petition for

discretionary review.

In determining essential elements to be included in an indictment, it is

important to recognize that there is a long-standing trend which disfavors

hypertechnical, common law pleadings and favors more practical, liberal pleadings.

The General Assembly adopted the Criminal Procedure Act of 1975, which

modernized archaic pleading requirements for criminal indictments. See State v.

Freeman, 314 N.C. 432, 436, 333 S.E.2d 743, 746 (1985) (“It is unnecessary for us to

decide here whether that rule drawn from the ancient strict pleading requirements

of the common law has survived the more liberal criminal pleading requirements of

our new Criminal Procedure Act and other recent legislation designed to remove from

our law unnecessary technicalities which tend to obstruct justice.”); see also State v.

Worsley, 336 N.C. 268, 279, 443 S.E.2d 68, 73 (1994) (observing that N.C.G.S. § 15A-

924 “supplanted prior law” requiring more strictly pleaded indictments (citations

omitted)); State v. Palmer, 293 N.C. 633, 638, 239 S.E.2d 406, 410 (1977) (explaining

the requirements of N.C.G.S. § 15A-924 (citations omitted)).

The Criminal Procedure Act sets forth the minimum standard for a sufficient

indictment in North Carolina by requiring

[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

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BEASLEY, J., dissenting

the conduct which is the subject of the accusation.

N.C.G.S. § 15A-924(a)(5) (2013). Indictments serve “(1) [to provide] such certainty in

the statement of the accusation as will identify the offense with which the accused is

sought to be charged; (2) to protect the accused from being twice put in jeopardy for

the same offense; (3) to enable the accused to prepare for trial, and (4) to enable the

court, on conviction or plea of nolo contendere or guilty to pronounce sentence

according to the rights of the case.” State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917,

919 (1953) (citations omitted).

“An indictment charging a statutory offense must allege all of the essential

elements of the offense.” State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)

(citations omitted). “It is well settled that ‘a valid bill of indictment is essential to the

jurisdiction of the trial court to try an accused for a felony.’ ” State v. Abraham, 338

N.C. 315, 339, 451 S.E.2d 131, 143-44 (1994) (quoting Sturdivant, 304 N.C. at 308,

283 S.E.2d at 729). “The existence of subject matter jurisdiction is a matter of law

and ‘cannot be conferred upon a court by consent.’ ” In re K.J.L., 363 N.C. 343, 345-

46, 677 S.E.2d 835, 837 (2009) (quoting In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d

787, 793 (2006)).1 An appellate court must vacate any judgment or conviction based

upon a facially invalid indictment because the indictment fails to confer jurisdiction

1Although the case cited is a civil case, if a party to a civil action cannot waive subject
matter jurisdiction, because subject matter jurisdiction must vest with the trial court, a
criminal defendant must also be prohibited from such waiver.

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BEASLEY, J., dissenting

to the trial court. See State v. Petersilie, 334 N.C. 169, 175-76, 432 S.E.2d 832, 835-

36 (1993) (citations omitted); see also State v. Jarvis, 50 N.C. App. 679, 680-81, 274

S.E.2d 852, 852 (1981) (where the trial court dismissed the indictment sua sponte for

lack of subject matter jurisdiction).

Critically, in the statute at issue, the General Assembly amended the time by

which an offender must report his address change to the local sheriff’s department.

Initially, in 1996 the legislature required that an offender submit his change of

address to the sheriff no later than the tenth day after the change. Act of July 29,

1995, ch. 545, sec. 1, 1995 N.C. Sess. Laws 2046, 2048 (effective 1 January 1996). In

2008 the legislature reduced the time period by which an offender must report his

address change from the tenth day to the third business day after the change. Act of

July 18, 2008, ch. 117, sec. 9, 2007 N.C. Sess. Laws (Reg. Sess. 2008) 426, 430-31

(emphases added).

The majority errs by discounting the significance of the “third business day”

reporting requirement established by the General Assembly. In 2006 Congress

enacted the Sex Offender Registration and Notification Act (SORNA) to provide a

comprehensive system for nationwide sex offender registration. 2 See United States

2 SORNA, also known as the Adam Walsh Child Protection and Safety Act of 2006
(Adam Walsh Act), is mostly codified at 42 U.S.C. §§ 16901-16962. See Adam Walsh Act,
Pub. L. No. 109-248, Title I, 120 Stat. 587 (2006). North Carolina is one of numerous states
that have not substantially implemented SORNA, but the State complies with many of its
provisions as a requirement to receive federal funding for crime labs, prisons and jails, and
other law enforcement programs. Office of Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (SMART), Office of Justice Programs, U.S. Dep’t of

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BEASLEY, J., dissenting

v. Price, 777 F.3d 700, 703 (4th Cir.), cert. denied, ___ U.S. ___, 192 L. Ed. 2d 941

(2015).

Congress through SORNA has not commandeered . . . nor
compelled the state[s] to comply with its requirements.
Congress has simply placed conditions on the receipt of
federal funds. A state is free to keep its existing sex-
offender registry system in place (and risk losing funding)
or adhere to SORNA's requirements (and maintain
funding).

United States v. White, 782 F.3d 1118, 1128 (10th Cir. 2015) (quoting United States

v. Felts, 674 F.3d 599, 608 (6th Cir. 2012)). In North Carolina, by amending section

14-208.9 to require notification of an address change within three business days, the

legislature intended to comply with the SORNA requirement to adopt the statutory

language in 42 U.S.C. § 16913(c), which provides that “[i]f a sex offender changes his

residence, employment, or student status, he must update his registration within

three business days .” Price, 777 F.3d at 703-04 (emphasis added). 3

Justice, SORNA, http://www.smart.gov/sorna.htm (last visited Jan. 25, 2016); see, e.g., White,
782 F.3d at 1128.

3 Though not defined in this context by the legislature, we assume that a business day
occurs Monday through Friday during “bankers’ hours.”
Further, N.C.G.S. § 90-95 is another example in which the legislature intended to
distinguish business days and calendar days. Time is an essential element in this statute in
that the Legislature has codified time limits by which a defendant has a right to object to the
State’s admitting certain toxicology evidence at trial. See N.C.G.S. § 90-95(g) (2014)
(requiring the State to provide notice to a defendant at least 15 business days before a judicial
proceeding of its intent to introduce a toxicology report into evidence and allowing the
defendant up to five business days to object to introduction of the report into evidence).
Although section 90-95 is based on the Confrontation Clause, this statute highlights the
importance of distinguishing between business days and calendar days in the criminal
context.

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BEASLEY, J., dissenting

The legislature also intended to shorten the “grace period” during which an

offender must report an address change and to specify the method by which the

address change period is calculated. The legislature’s deliberate change from “day”

to “business day” alleviates confusion for offenders and law enforcement. For

example, if a defendant’s address changes on Thursday, without this business day

requirement, it would be unclear whether that defendant is required to report his

change of address to the sheriff by the following Sunday or by the following Tuesday.

This statute provides clarity and reasonable notice to a defendant. Because the

legislature deliberately carved out this distinction, this nomenclature is not

hypertechnical surplusage.

The majority cites three recent opinions from the Court of Appeals as support

that the term “business days” is not an element of the offense and, therefore, not

compulsory language in an indictment under section 14-208.9. In State v. Leaks, upon

the sheriff’s office’s realization that defendant was no longer occupying the address

he previously registered, the sheriff’s office sent defendant “an address verification

letter” that was later returned as “undeliverable.” ___ N.C. App. ___, ___, 771 S.E.2d

795, 797 (2015). In Leaks the defendant argued that his indictment was insufficient

because it did not state that “he was required to provide ‘written notice’ ” of his

address change. ___ N.C. App. at ___, 771 S.E.2d at 797-98. The defendant relied on

State v. Osborne, an unpublished Court of Appeals decision, which held that “written

notice” and “three business days” are essential elements of the offense. Id. at ___,

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BEASLEY, J., dissenting

771 S.E.2d at 798 (citing State v. Osborne, ___ N.C. App. ___, 763 S.E.2d 16, 2014 WL

2993855 (2014) (unpublished). The issue of whether “three business days” is an

element of N.C.G.S. § 14-208.9(a) was not raised in Leaks. The Court of Appeals held

in Leaks that the statutory requirement that notice be provided “in writing” is an

evidentiary matter and not an element of the offense. Id. at ___, 771 S.E.2d at 799.

Moreover, the Court of Appeals relied on State v. Abshire, 363 N.C. 322, 677 S.E.2d

444 (2009), to reject the defendant’s argument that the indictment failed to confer

subject matter jurisdiction to the trial court. Id. at ___, 771 S.E.2d at 799.

Similarly, in State v. McLamb, following the sheriff’s office’s discovery that

defendant had vacated his last registered address without notifying that office, the

defendant was convicted for failing to register. ___ N.C. App. ___, ___, 777 S.E.2d

150, 151 (2015). On appeal the defendant argued that the indictment was deficient

because it failed to contain language alleging the required “written notice” and “three

business days.” Id. at ___, 777 S.E.2d at 151. The Court of Appeals rejected the

analysis in Osborne, noting that the court had since issued Leaks and State v. James,

___ N.C. App. ___, 774 S.E.2d 871 (2015), which held respectively that the exclusion

of “written notice” in Leaks and of “three business days” in James was not a fatal

defect. McLamb, ___ N.C. App. at ___, 777 S.E.2d at 152. The court noted, however,

that the better practice is for the indictment to include the words “written notice” and

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BEASLEY, J., dissenting

“three business days.” Id. at ___, 777 S.E.2d at 153.4

The majority also cites State v. Furr, an unpublished opinion, to support its

conclusion that “three business days is not required for an indictment under N.C.G.S.

§ 14-208.11.” In Furr the sheriff’s office received information that the defendant did

not reside at his registered address, which was confirmed by the woman with whom

the defendant was living. ___ N.C. App. ___, 775 S.E.2d 693, 2015 WL 3791729 at *1-

2 (2015). On appeal the defendant argued that the indictment did not confer subject

matter jurisdiction because of its omission of “written notice” and “three business

days.” 2015 WL 3791729 at *2. In Furr the Court of Appeals again declined to follow

Osborne, concluding that Osborne is not controlling because the opinion is

unpublished. Id. at *4. The Court of Appeals instead relied on its published opinions

in State v. Pierce, ___ N.C. App. ___, 766 S.E.2d 854 (2014), and State v. Harrison,

165 N.C. App. 332, 598 S.E.2d 261 (2004), both of which held that the indictments

were sufficient despite their failure to allege “additional elements.” Furr, 2015 WL

3791729 at *4.

It is noteworthy that State v. Leaks, State v. McLamb, and State v. Furr were

all decided by the Court of Appeals after the present case was decided by that court.

The conflicts in the Court of Appeals’ opinions, as reflected in Leaks, McLamb, Furr,

4 James noted that defendant was not prejudiced by the omission of the words “three
business days” from the indictment. Further, the court opined that the “indictment
nevertheless gave [the d]efendant sufficient notice of the charge against him.” ___ N.C. App.
at ___, 774 S.E.2d at 875.

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BEASLEY, J., dissenting

and Osborne, suggest that the court has not settled this issue, as the split in its own

precedent demonstrates and, therefore, is not persuasive.

Here defendant also argues that the “timing of the offense is a specific element”

and that the indictment was invalid because it alleged “a window of five months

during which [defendant] could have committed a crime involving a three day

threshold.” The majority cites State v. Harrison for the proposition that the time of

the commission of the offense is not essential. In Harrison, decided by the Court of

Appeals before Osborne, the Court of Appeals rejected the defendant’s argument that

the indictment failed to confer jurisdiction to the trial court because the indictment

did not identify the specific dates of the moves or the new address. 165 N.C. App. at

336, 598 S.E.2d at 263. The Court of Appeals ultimately held that the indictment

gave the defendant adequate notice of the charges pending against him. Id. at 336,

598 S.E.2d at 263.

It cannot be that, as the majority writes, “it does not matter when the crime

occurred” because it is imperative that if a failure to report an address change is

alleged, a defendant must have notice of the time by which he must have reported an

address change. It proves impossible for a defendant to be properly noticed, as the

statute requires, of the time by which he must report an address change to the sheriff

if the indictment does not inform that defendant of the time during which the State

alleges he violated the statute. Neither the statute nor SORNA makes that time

requirement a fluid one. It does appear that when, as here, the time period is alleged,

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BEASLEY, J., dissenting

the proof thereof is an evidentiary matter.

The majority correctly assesses that defendant’s reliance on State v. Abshire is

misguided for the proposition that “three business days” is an essential element of

the offense. The majority also correctly characterizes the holding in Abshire as

defining “address” consistent with SORNA’s intent. Abshire did not address whether

“three business days,” or ten days per the statute at the time Abshire was decided, is

an essential element.

Therefore, because I would hold that the term “business day” is an essential

element for an indictment charging a defendant under N.C.G.S. § 14-208.11, and thus

the indictment at issue here is facially invalid, I respectfully dissent. I would remand

this case to the Court of Appeals for remand to the trial court with instructions to

vacate the judgment based upon this fatally defective indictment.

Justice HUDSON joins in this dissenting opinion.

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