An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-66
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


STATE OF NORTH CAROLINA


       v.                                     Watauga County
                                              No. 13 CRS 50053
STEVEN JAMES MERRELL



       Appeal by defendant from judgment entered 5 September 2013

by Judge Mark E. Powell in Watauga County Superior Court.                        Heard

in the Court of Appeals 20 May 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       J. Joy Strickland, for the State.

       Mark Hayes for defendant.


       ELMORE, Judge.


       In September 2013, a jury found defendant guilty of failing

to comply with the sex offender registration law pursuant to

N.C.   Gen.    Stat.   §   14-208.11.        Defendant     received    an    active

prison sentence of 23-37 months.              Defendant appeals and raises

as error the trial court’s denial of his motion to dismiss for

insufficient     evidence.        After   careful     consideration,        we    hold
                                          -2-
that    the   trial     court   did     not    err.      Furthermore,        we     dismiss

defendant’s second issue on appeal.

                                          I. Facts

       On 29 October 1996, judgment was entered against Steven

James    Merrell       (defendant)      for    the     crime   of    taking       indecent

liberties with a minor.           As a result, defendant was required to

maintain registration on the North Carolina Sex Offender and

Public Protection Registry.               Defendant appeared in the Watauga

County    Sheriff’s      Office    on    16    October    2012      to    submit     a    sex

offender change of address form, indicating that his new address

was at the Hospitality House, a homeless shelter, on 338 Brook

Hollow Road in Boone.              Two months later, defendant signed a

verification form to confirm that he still lived there.                              Deputy

Seth Arthur Morrison, pursuant to his duties at the Watauga

County Sheriff’s Office, went to 338 Brook Hollow Road on 9

January 2013 to confirm that defendant, in fact, lived at that

address.      After speaking with a Hospitality House employee and

making    his    own    observations,         Deputy    Morrison     determined          that

defendant       no   longer     resided       there.      On   11        February    2013,

defendant was indicted under N.C. Gen. Stat. § 14-208.11 for his

purported failure to comply with sex offender registration.
                                       -3-
    At trial, defendant made a motion to dismiss at the close

of the State’s evidence for insufficient evidence and renewed

his motion at the end of all evidence.               Both times, the trial

court denied defendant’s motion.

                                    II. Analysis

a.) Address Change

    First,        defendant   argues   that    the   trial    court   erred    in

denying     his    motion     to   dismiss    because   the     evidence      was

insufficient to show that he actually changed his address.                     We

disagree.

    “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) (citation omitted).                 “‘Upon defendant’s

motion for dismissal, the question for the Court is whether

there is substantial evidence (1) of each essential element of

the offense charged, or of a lesser offense included therein,

and (2) of defendant’s being the perpetrator of such offense.

If so, the motion is properly denied.’”              State v. Fritsch, 351

N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334

N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S.

890, 148 L. Ed. 2d 150 (2000).               “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate
                                          -4-
to support a conclusion.”               State v. Smith, 300 N.C. 71, 78-79,

265 S.E.2d 164, 169 (1980).               “In making its determination, the

trial    court      must    consider      all       evidence      admitted,     whether

competent or incompetent, in the light most favorable to the

State,     giving    the     State      the     benefit      of    every      reasonable

inference and resolving any contradictions in its favor.”                          State

v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation

omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

Moreover,

            [c]ircumstantial evidence may withstand a
            motion to dismiss and support a conviction
            even when the evidence does not rule out
            every   hypothesis  of  innocence.   If  the
            evidence presented is circumstantial, the
            court must consider whether a reasonable
            inference of defendant’s guilt may be drawn
            from the circumstances. Once the court
            decides that a reasonable inference of
            defendant’s guilt may be drawn from the
            circumstances, then it is for the jury to
            decide whether the facts, taken singly or in
            combination,    satisfy   [it]    beyond   a
            reasonable doubt that the defendant is
            actually guilty.

Fritsch,    351     N.C.   at    379,    526    S.E.2d    at      455   (citation      and

quotation marks omitted).

    A    conviction        for   failing       to   comply     with     the   change    of

address requirements for a registered sex offender under N.C.

Gen. Stat. § 14–208.11 (2013) requires proof beyond a reasonable
                                        -5-
doubt that: “(1) the defendant is a person required . . . to

register,    (2)    the    defendant    [willfully]       changes    his     or   her

address, and (3) the defendant [willfully] fails to notify the

last registering sheriff of the change of address, . . . not

later than the tenth day after the change[.]”                 State v. Worley,

198 N.C. App. 329, 334, 679 S.E.2d 857, 861 (2009) (internal

citations and quotation marks omitted).

    In defining the word “address” for the purpose of this

statute,    our    Supreme   Court     has    stated   that   “the    legislature

intended    the     definition    of    address    under      the    registration

program to carry an ordinary meaning of describing or indicating

the location where someone lives[,] . . . a person’s residence.”

State v. Abshire, 363 N.C. 322, 330-31, 677 S.E.2d 444, 450

(2009).     A location is classified as an address whether it is

“permanent or temporary” as long as it is “the actual place of

abode where [the defendant] lives[.]”              Worley, 198 N.C. App. at

335, 679 S.E.2d at 862 (citations and quotations omitted).

    In the case           sub judice, defendant filed a sex offender

change of address form on 16 October 2012 indicating that his

new address was at the Hospitality House located on 338 Brook

Hollow Road.       Deputy Morrison went to the Hospitality House on 9

January    2013    to   verify   whether      defendant    still     lived   there.
                                               -6-
Initially, he could not locate defendant, and Zachary Ollis, a

shelter employee, told Deputy Morrison that although defendant

visited      the   shelter       on    occasion       to    eat     lunch    and      “possibly

access other services[,]” defendant was “not . . . [a] resident

at the Hospitality House[.] . . . He has not been a resident

since       November    8th,    2012.          He    is     currently       in    a    homeless

situation.”        Ollis testified that defendant stayed “in a tent in

the woods” and “[t]here was period of time in which we didn’t

see [defendant] for an extended length of time, then it became

peppered with a day here, a day there, and for a while he was

there everyday for a couple weeks, but very sporadic. We never

really knew when to expect him[.]”                        Laura Bullock, an emergency

shelter service coordinator at the Hospitality House, testified

that defendant lived at the shelter from 11 October 2012 until 8

November       2012,    at     which     time       he     left    the   shelter        without

providing a forwarding address.                      When defendant was arrested by

Deputy Morrison, he stated that “Hospitality House would not let

[me]    stay       there       unless     it        was    less     than     40       degrees.”

Furthermore,       Hospitality          House       records       corroborate         Ollis   and

Bullock’s testimony and also indicate that defendant did not

return to stay at the shelter until April 2013.                             Thus, although

it     is     unclear      where      defendant           lived     after        leaving      the
                                      -7-
Hospitality House, the State provided substantial evidence for a

jury to reasonably infer from the circumstances that defendant’s

address had changed between November 2012 and March 2013.                    See

id. at 338, 679 S.E.2d at 863-64 (rejecting defendant’s argument

that    “there    are    occasionally   times   when       a   registered    sex

offender lacks a reportable ‘address’” and stating that “the sex

offender     registration    statutes   operate       on   the   premise    that

everyone does, at all times, have an ‘address’ of some sort,

even if it is . . . a location under a bridge or some similar

place”).

b.) Willful Conduct

       In the alternative, defendant argues that if a change of

address occurred, there was insufficient evidence to show that

1.) the address change was done willfully and 2.) his failure to

notify the last registering sheriff of his address change was

willful.     We dismiss this issue on appeal.

       It   is   well   established   that   “where    a   theory   argued    on

appeal was not raised before the trial court, the law does not

permit parties to swap horses between courts in order to get a

better mount in the appellate courts.”            State v. Holliman, 155

N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (citation and

quotation marks omitted).        A defendant who “presents a different
                                        -8-
theory to support his motion to dismiss than that he presented

at   trial”    does   not   preserve    the    new   argument   for    appellate

review.       State v. Euceda-Valle, 182 N.C. App. 268, 272, 641

S.E.2d 858, 862 (2007).

      In the present case, defendant made a motion to dismiss at

the close of the State’s evidence:

              Your Honor, at this time the defendant would
              move to dismiss at the close of State’s
              evidence. We would contend that the State
              has failed to show here adequate evidence
              that the defendant had, in fact, moved. . .
              . So, you know, regardless of other things,
              the fact of the matter is there is not any
              testimony in this case putting [defendant]
              anywhere other than where he is supposed to
              be we would contend.        And [sic] would
              contend that that’s not an adequate evidence
              of an address change, and that therefore, he
              would not have been required to have given a
              notice to the Sheriff of [sic] address
              change.   He came in when [sic] was supposed
              to. He verified his address as he’s supposed
              to. Even the State's own test-- evidence was
              that he was diligent in coming in and
              keeping track of such things.

(emphasis     added).       At   the   close   of    all   evidence,   defendant

renewed his motion on the same grounds:

              Your Honor, at the close of all the evidence
              I would move to dismiss. I would just
              reiterate the argument that I made earlier.
              There is inadequate evidence in this case
              from which a jury could find beyond a
              reasonable doubt that there was an address
              change,   and   that   therefore  that   the
              requirement would have come into play. . . .
                                   -9-
            So we would contend that there simply is
            inadequate evidence of an address change,
            and the jury could not find beyond a
            reasonable  doubt  that  he  had  changed
            addresses.

(emphasis added).

       Upon review of defendant’s motion to dismiss at trial, his

motion was specifically made on the basis that an actual address

change never occurred.       However, defendant’s current argument on

appeal     regarding   the   State’s     presentation    of   insufficient

evidence relates to the absence of defendant’s willful conduct,

assuming that an address change occurred.               Such a theory was

never raised in front of the trial court.                Consequently, we

dismiss this argument on appeal.

                             III. Conclusion

       In sum, the trial court did not err by denying defendant’s

motion to dismiss because the evidence was sufficient to show

that     defendant   actually   changed    his   address.     We   dismiss

defendant’s second argument that no sufficient evidence existed

to show his willful conduct because defendant never raised this

theory during his motion to dismiss at trial.

       No error, in part; dismissed, in part.

       Judges McGEE and HUNTER, Robert C., concur.

       Report per Rule 30(e).
-10-
