An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                         -2-
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).
