No. Coa07-1185 Twenty Fifth Judicial District
NO. COA07-1185 TWENTY FIFTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA )
)
v. ) FROM CALDWELL COUNTY
) No. 06-CRS-052853
PATRICIA DAWN ABSHIRE )
)
______)
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DEFENDANT-APPELLANT’S BRIEF
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i
INDEX
PAGE
TABLE OF AUTHORITIES ...... iii
QUESTIONS PRESENTED ...... 1
STATEMENT OF THE CASE ...... 2
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ...... 2
STATEMENT OF THE FACTS ...... 3
ARGUMENTS ...... 4
I. THE TRIAL COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER THE DEFENDANT AS THE INDICTMENT PURPORTING TO CHARGE HER WITH A VIOLATION OF G.S. 14-208.11 IS FATALLY DEFECIENT. (ASSIGNMENT OF ERROR NO.1, Rp.24) ...... 4
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE AGAINST DEFENDANT BECAUSE OF THE INSUFFICIENCY OF THE EVIDENCE. (ASSIGNMENT OF ERROR NO. 2, Rp.24) ...... 7
CONCLUSION ...... 15
CERTIFICATE OF SERVICE ...... 16
ii
CASES TABLE OF AUTHORITIES PAGE
Bell v. United States, 349 U.S. 81(1955) ...... 11
Cole v. Arkansas, 333 U.S. 196, 92 L. Ed. 644 (1948) . . .5
Farnsworth v. Jones, 114 N.C. App.,441 S.E.2d. 597(1994).12,13
Groves v. Commissioner, 180 N.C. 568, 105 S.E. 172(1920).14
Hall v. Wake County Elections, 280 N.C. 600,
187 S.E.2d. 52 (1972) ...... 11,12
Harrington v. U. S.,422 U.S. 853,45 L. Ed.2d 593(1975). . 6
N.C. Dep’t of Env’t & Natural Res. v. Carroll,358 N.C. 649,
599 S.E.2d 888(2004)...... 8
Stanton v. Brame, 136 N.C. App. 170,523 S.E.2d 424(1999) .8
State v. Calvino, ___ N.C. App. ___, 632 S.E.2d 839(2006).5
State v. Gallimore, 24 N.C. 372 (1842) ...... 6
State v. Greer, 238 N.C. 325, 77 S.E.2d 917 (1953) . . . . .6,7
State v. Jessup, 279 N.C. 108,181 S.E.2d 594(1971). . . . 5
State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002). . 8,9
State v. Nettles, 170 N.C. App. 100612 S.E.2d 172
disc. review denied, 359 N.C. 640, 617 S.E.2d 286(2005) . 8
State v. Ross, 272 N.C. 67, 157 S.E.2d 712(1967) . . . . . 11
State v. Stokes, 274 N.C. 409, 163 S.E.2d 770(1968) . . . . 6
State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981) . .6
U.S. v. Davis, 184 F. 3d 366(4th Cir. 1999) ...... 5
STATUTES
N.C. Gen. Stat. 7A-27(b) ...... 2
iii
N.C.G.S. 14-208.9 ...... 6,9,11
N.C.G.S. 14-208.11 ...... 6,7,9,11
N.C. Gen. Stat. §15A-924 ...... 5
CONSTITUTIONAL PROVISIONS
N.C. Constitution, Article I, Section XXII ...... 5
U.S. Constitution, Amendment V ...... 5
U.S. Constitution, Amendment VI ...... 5
U.S. Constitution, Amendment XIV ...... 5
NO. COA07-1185 TWENTY FIFTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
**********************************************
STATE OF NORTH CAROLINA )
)
v. ) FROM CALDWELL COUNTY
) No. 06-CRS-052853
PATRICIA DAWN ABSHIRE )
)
______)********************************************
DEFENDANT-APPELLANT’S BRIEF
********************************************
QUESTIONS PRESENTED
I. DID THE TRIAL COURT HAVE SUBJECT MATTER JURISDICTION OVER THE DEFENDANT AS THE INDICTMENT PURPORTING TO CHARGE HER WITH A VIOLATION OF G.S. 14-208.11 IS FATALLY DEFECIENT?
II. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE AGAINST DEFENDANT BECAUSE OF THE INSUFFICIENCY OF THE EVIDENCE?
STATEMENT OF THE CASE
Ms. Abshire was indicted for failure to comply with sex offender registration on 23 October 2006. The Defendant’s case was called for hearing at the 27 February 2007 session of Criminal Superior Court for Caldwell County before the Honorable Nathaniel J. Poovey. On or around 28 February 2007 the jury returned a verdict finding the Defendant guilty of failing to comply with the sex offender registration law. The trial court entered the judgment on 28 February 2007, sentencing Defendant to a minimum of 13 months, and a maximum of 16 months, to be suspended under supervised probation for 18 months. The Defendant gave timely notice of appeal from the judgment of the trial court in open court on 28 February 2007. The transcript was ordered on 28 February 2007 and was mailed to the parties on 29 June 2007.
The final record on appeal was filed with the North Carolina Court of Appeals on 27 September 2007 and docketed on 27 September 2007. The printed Record on Appeal was mailed from the Office of the Clerk of the Court of Appeals on 3 October 2007.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
The ground for appellate review is a final judgment of superior court under N.C. Gen. Stat. 7A-27(b). A timely notice on appeal was given by the Defendant in open court on 28 February 2007.
STATEMENT OF THE FACTS
On July 19, 2006, Ms. Abshire filed a written change of address form with the Caldwell County Sheriff’s office in compliance with the Sex Offender registration program notifying the Sheriff’s office that her address was changing from 2155 White Pine Dr. #9, Granite Falls, NC to 3410 Gragg Price Lane, Hudson, NC. Since her release from prison, Ms. Abshire had filed thirteen of these change of address forms with the Caldwell County Sheriff’s office, and had always been in compliance. (Rp.26; Tpp.45;84)
Ms. Abshire worked in her father’s restaurant at the time. She moved into her husband’s house at 3410 Gragg Price Lane with her two children, ages 9 and 11. Her husband’s father also lived in that house. Around the middle of August, 2006, someone broke into the house at 3410 Gragg Price Lane and stole Ms. Abshire’s daughter’s computer. About two weeks after this occurred, she and her daughters began spending the night at her parents house located at 5739 Poovey Drive Granite Falls, NC. (Tpp.83;85)
Ms. Abshire and her father testified that she never brought a suitcase to her parents’ house and would only come over at night during the time in question. She, her father and father in law all testified that even on the nights she spent at her parents’ house, she returned to 3410 Gragg Place Lane during the day. She also spent the night at her residence at Gragg Place Lane on September 9, 2006, and September 14, 2006. She had her own phone number and account at Gragg Place Lane this entire period, and all her mail came to her at that residence. (Tpp.86,89,93).
Ms. Abshire was attacked by her brother on September 13, 2006, and filed a Criminal Complaint against him. She did list her parents’ address on Poovey Drive as her “address” in that Complaint. She testified at Court that she was planning resuming staying at her residence on Gragg Place Lane full time when this assault happened, causing her to spend a few more nights at her parents house. (Rp.97; Tp.103).
ARGUMENTS
- THE TRIAL COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER THE DEFENDANT AS THE INDICTMENT PURPORTING TO CHARGE HER WITH A VIOLATION OF G.S. 14-208.11 IS FATALLY DEFECIENT. (ASSIGNMENT OF ERROR NO.1, Rp.24)
The charging indictment in this case lists that the date of the offense was “on or about September 14 to 18, 2006”. (Rp.4) During the body of the indictment it further alleges that that Ms. Abshire violated N.C.G.S. 14-208.11 by failing to notify the Caldwell County Sheriff’s office that she had moved to a residence at 5739 Poovey Drive, Granite Falls, NC “[o]n or about August 30 to September 4, 2006”. As the crux of the violation of this statute depends on Ms. Abshire being at a separate residence more than ten days, the vagueness and inexactness of the dates alleged for the violation in the indictment are fatal, depriving the trial court of jurisdiction.
Standard of Review
The question of whether an indictment is fatally defective is an issue of law, reviewed by this Court de novo. State v. Calvino, ___ N.C. App. ___, 632 S.E.2d 839, 842 (2006)
Argument
An indictment is the foundation upon which a felony charge rests, and if it is defective, then the prosecution fails. State v. Jessup, 279 N.C. 108, 111, 181 S.E.2d 594, 597 (1971). This axiom is rooted in Article I, Section XXII of the North Carolina Constitution. “An indictment must contain all of the elements of the charged offenses and fairly inform a defendant of the charges against him. U.S. v. Davis, 184 F. 3d 366, 371, N. 5 (4th Cir. 1999). N.C. Gen. Stat. §15A-924(a)(5) asserts that a criminal pleading must set forth facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient clarity to apprise the defendant of the conduct for which he is presented for trial.
This right to notice of the elements of the charge against the Defendant is guaranteed by the due process clause in the Fifth Amendment, as applied to the States through the Fourteenth Amendment to the United States Constitution. Cole v. Arkansas, 333 U.S. 196, 201, 92 L. Ed. 644 (1948). This right to notice is also guaranteed under the Sixth Amendment, as applied to the States by the Fourteenth Amendment to the United States Constitution. Harrington v. United States, 422 U.S. 853, 856-857, 45 L. Ed.2d 593, 597 (1975).
It is "an essential of jurisdiction that a criminal offense should be sufficiently charged in . . . an indictment." State v. Stokes, 274 N.C. 409, 411, 163 S.E.2d 770, 771 (1968). A valid indictment is necessary to give a trial court jurisdiction to enter judgment for a criminal offense. State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719 (1981); State v. Gallimore, 24 N.C. 372 (1842).
The authorities are in unison that an indictment, whether at common law or under a statute, to be good must allege lucidly and accurately all the essential elements of the offense endeavored to be charged. The purpose of such constitutional provision is: (1) 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).
In the present case, N.C.G.S. 14-208.9(a) sets out that:
“If 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 tenth day after the change to the sheriff of the county with whom the person had last registered.” N.C.G.S. 14-208.11, the statute Ms. Abshire is charged with violating in the indictment, makes “failure to notify the last registering sheriff of a change of address” a Class F felony. (Rp.4)
The crux of a violation of G.S.14-208.11 centers on the State proving that Ms. Abshire failed to notify the Sheriff of a change of address not later than the tenth day after the change is made. As such, the indictment should put Ms. Abshire on notice of the specific date the State is alleging she “changed addresses” and the specific date she violated the provisions of G.S. 14-208.11, by not registering that change of address with the sheriff. The charging indictment in this case fails to do that, and thus fails “to protect the accused from being twice put in jeopardy for the same offense”, rendering the indictment invalid. See Greer, 238 N.C. at 327, 77 S.E.2d at 919.
The failure to designate a specific date of the alleged change of address, but only designate a range of days, “On or about August 30 to September 4th” for the alleged move, and “on or about September 14 to 18” for the violation is so broad as to subject Ms. Abshire to the possibility of being subjected to double jeopardy under the same facts. As such, the indictment was invalid, the trial court never had jurisdiction, and this action should be reversed and remanded for a dismissal.
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS THE CHARGE AGAINST DEFENDANT BECAUSE OF THE INSUFFICIENCY OF THE EVIDENCE. (ASSIGNMENT OF ERROR NO. 2, Rp.24)
The State failed to provide sufficient evidence that Ms. Abshire had “changed addresses”, for purposes of the statute. As such, it was error for the trial court not to dismiss the action at the close of all the evidence.
Standard of Review
The standard of review on a motion to dismiss a charge was properly ruled upon is de novo. The question is whether the evidence presented was substantial as a matter of law. State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d 172, 174, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Questions of law are reviewed de novo. Stanton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d 424, 427 (1999). Under a de novo standard of review, the reviewing court considers the matter anew and freely substitutes its own judgment for that of the lower court. N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).
In ruling upon a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002). The trial court determines whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Id. at 473, 573 S.E.2d at 889. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id.
Argument
To show a violation of G.S. 14-208.11 for failing to notify the sheriff of a change of address, the State must prove that Ms. Abshire failed “to report in person and provide written notice of the new address not later than the tenth day after the change to the sheriff . . .” N.C.G.S. 14-208.9 (2006). No where in 14-208 is “change of address” defined. Under definitions provided by this Court, the State failed to provide sufficient evidence that Ms. Abshire that Ms. Abshire “changed her address”.
The uncontroverted evidence at trial showed that on July 19, 2006, Ms. Abshire properly filed a change of address form with the Sheriff showing that she was changing her address to 3410 Gragg Price Lane, Hudson, NC from 2155 White Pine Dr.#9, Granite Falls, NC, both in Caldwell County. This was the thirteenth time Ms. Abshire had correctly changed her address with the Sheriff since being released from prison. (Rp.18)(Tp.63)
Ms. Abshire and her children lived with her father in law at 3410 Gragg Price Lane. The evidence revealed that she had her own separate phone line at her Gragg Price Lane residence, and all of she and her children’s clothes, computers and other belongings were at this residence. According to the testimony at trial, around the beginning of September, Ms. Abshire’s daughter’s computer was stolen from her Gragg Price Lane residence. At that time, Ms. Abshire told her father in law that she and her daughters were going to spend the night with her parents for a couple of weeks. According to testimony from her father in law, she would come back to the Gragg Price Lane residence during the day to pick up her mail and feed the cats. He also testified that during this two week period she and her kids also spent a couple of nights back at the Gragg Price Lane Residence. In her sworn statement to the Sheriff, Ms. Abshire told the sheriff that she stayed at the Gragg Price Lane residence on the nights of September 9th and the 14th, during the two week period that she spent nights at her father’s house. (Rp.21)(Tpp.35,36-7,55)
The State did present evidence that on September 18th, Ms. Abshire filed a criminal complaint for assault against her brother and listed her father’s address of 5739 Poovey Road, Granite Falls, NC, as her address. They charged her with this violation that same day. Ms. Abshire’s father, Robert Abshire, wrote a note to the Sheriff at the time Ms. Abshire was arrested on September 18th, stating that she had been staying at his house for the past 5-6 weeks, and during that time she would spend the night at 3410 Gragg Price Lane every 7-10 days. He confirmed Ms. Abshire’s testimony that she never moved any clothes, furniture or other belongings to his residence during the time she and her girls were spending the night there. She returned to Gragg Price Lane every day; only brought clothes over for the specific night they were staying; continued to get her mail at Gragg Price Lane; and told him she planned to move back there full time soon. (Tpp.72-73). Under this evidence, even in the light most favorable to the State, Ms. Abshire had not changed her “address” from 3410 Gragg Price Lane for more than ten days, and this case should have been dismissed.
This statute fails to define “address”. Provisions in the statute addressing when persons required to register are moving to another state, requires “the person shall report in person to the sheriff of the county of current residence at least 10 days before the date the person intends to leave this state to establish residence in another state or jurisdiction.” G.S. 14-208.9(b)(2006)(emphasis added) The statute also makes provision for the person required to register to notify the Sheriff of out-of-county employment if “temporary residence” is established under 14-208.8A. G.S. 14-208.11 (2007).
In construing ambiguous criminal statutes, our Courts apply the rule of lenity, which requires strict construction of the statute. See State v. Ross, 272 N.C. 67, 69, 157 S.E.2d 712, 713 (1967) ("Statutes creating criminal offenses must be strictly construed."); see also Bell v. United States, 349 U.S. 81, 83 (1955) ("When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity."). Thus, construing this statute strictly, Ms. Abshire must have changed her permanent residence or domicile without giving written notice to the Sheriff within ten days to be guilty of the violation charged.
Our Courts have recognized that residence and domicile are not convertible terms. In areas such as election law, the term “residence” is synonymous with legal domicile. Hall v. Wake County Elections, 280 N.C. 600, 605, 187 S.E.2d. 52,55(1972). As recognized by the Hall Court, the term residence can encompass a “temporary residence” while a person has his domicile somewhere else. As noted above, the statute at hand provides specific reference as to what a person required to register is to do when they take a “temporary residence” for out of county employment. Thus, under our rules for statutory construction, a “change of address” as used under G.S. 14-208, must mean permanent residence or domicile as defined by our Courts.
Once a person has acquired a domicile, it is presumed to continue until a new domicile is established. Hall at 608, 187 S.E.2d. at 57. To establish a change of domicile, the Courts have applied a three part test: (1) an actual abandonment of the first domicile, coupled with an intention not to return to it; (2)the acquisition of new domicile by actual residence at another place; and (3) the intent of making the newer residence her permanent home. Id. at 608-08; 187 S.E.2d. at 57.
In Farnsworth v. Jones, 114 N.C. App., 441 S.E.2d. 597 (1994), this Court heard a challenge of a candidate for Gastonia City Council’s residence status for the election. The election laws required him to establish residence in the proper precinct thirty days prior to the election. This Court reversed the trial court’s judgment upholding the Board of Elections decision that the defendant had fulfilled the residency requirements and properly changed his residence thirty days prior to the election. This Court noted that the defendant filed a change of address affidavit, placing his residence at an apartment, in the proper district, more than thirty days from the election. Though the evidence at the hearing showed that Defendant and his wife testified that they intended the apartment to be their new domicile, and his wife testified that she spent at least three nights a week at the apartment, the defendant and his wife failed to change his mailing address from his prior address, and failed to change his address on his drivers’ license; among other things. This Court found that there was no substantial evidence to support the trial court’s conclusion that “defendant had actually abandoned his previous residence with no intent to return” and reversed the trial court. Id. at 188-189.
In the present case, the uncontroverted evidence established that though Ms. Abshire and her children had been spending the night at her father’s house for some period of time, she had moved no clothing or other belongings to her father’s house. She returned to her residence at Gragg Price Lane every day, and at least every 7 to 10 days spent the night there. She received all her mail at Gragg Price Lane, and had her own separate land line there. She, her father in law, and her father all testified that she was planning to return to Gragg Price Lane full time, and considered that her home or permanent residence. Under these facts, it is clear that the State failed to prove that Ms. Abshire changed her “address” or permanent residence as defined by the Courts, and the trial court should have dismissed the case.