              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-149

                                  Filed: 2 May 2017

Surry County, No. 15CRS000692-94

STATE OF NORTH CAROLINA

             v.

JOE ROBERT REYNOLDS, Defendant


      Appeal by defendant from judgment entered on or about 5 November 2015 by

Judge William D. Albright in Superior Court, Surry County. Heard in the Court of

Appeals 8 August 2016.


      Attorney General Joshua H. Stein, by Assistant Attorney General William P.
      Hart, Jr., for the State.

      Amanda S. Zimmer, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals judgment from two convictions arising out of his failure to

inform the sheriff’s office of his address after being released on parole and one

conviction for attaining the status of habitual felon. For the following reasons, we

vacate one of defendant’s convictions on the basis of double jeopardy, find no error on

the other issues raised, and remand for resentencing.

                                     I.    Background

      The general background of this case was stated in State v. Reynolds,
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                                   Opinion of the Court



                     On or about 22 July 2013, defendant was indicted for
             failing to register as a sex offender. Thereafter, on or about
             7 October 2013, defendant was indicted for attaining the
             status of habitual felon. During defendant’s trial, two
             witnesses testified on behalf of the State. The first witness
             was defendant’s supervising parole officer who testified
             that though defendant had on more than one occasion
             previously registered as a sex offender within three
             business days as required by law, defendant eventually
             refused to register after he was released from incarceration
             after a parole violation, stating that he was already
             registered and nothing had changed. The second witness
             was a detective with the Surry County Sheriff’s Office who
             testified that he went to a magistrate for an arrest warrant
             due to defendant’s failure to register within three business
             days of being released from incarceration, although he too
             noted defendant had previously registered.

___ N.C. App. ___, 775 S.E.2d 695, slip op. at 1-2. (No. COA14-1019) (June 16, 2015)

(unpublished) (“Reynolds I”).      In Reynolds I, this Court vacated defendant’s

convictions concluding North Carolina General Statute § 14-208.11(a)(1) “logically

applies only to individuals who are registering for the first time and not to defendant,

who was already registered.” See id. at 4.

       Thereafter, in August of 2015, defendant was again indicted for failure to

report a new address as a sex offender and failure to report in person as a sex

offender, both on the same offense date as in Reynolds I, but under North Carolina

General Statute § 14-208.11(a)(2) and (a)(7).         Defendant was also indicted for

attaining the status of habitual felon. After a trial, the jury found defendant guilty

on all counts, and the trial court entered judgment. Defendant appeals.



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                                     II.      Double Jeopardy

       Defendant was convicted of two separate crimes arising from his failure to

register his change of address, one pursuant to North Carolina General Statute § 14-

208.11(a)(2) and one pursuant to North Carolina General Statute § 14-208.11(a)(7).

North Carolina General Statute § 14-208.11(a) provides in pertinent part:

                      (a)   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.
                      ....
                       (7)  Fails to report in person to the sheriff's office
                            as required by G.S. 14-208.7, 14-208.9, and
                            14-208.9A.

N.C. Gen. Stat. § 14-208.11(a) (2013).

       North Carolina General Statute § 14-208.11(a)(7) refers to three other statutes

which address registration in different situations, but only one, § 14-208.9, is

applicable in this situation.1         Thus here, the State was required to prove that

defendant failed to register as required by North Carolina General Statute § 14-208.9.




       1   North Carolina General Statute § 14-208.7 is not applicable here because it applies to “the
initial registration[.]” State v. Crockett, 368 N.C. 717, 722, 782 S.E.2d 878, 882 (2016) (“We now hold
that N.C.G.S. § 14–208.9, the change of address statute, and not section 14–208.7, the registration
statute, governs the situation when, as here, a sex offender who has already complied with the initial
registration requirements is later incarcerated and then released.”). North Carolina General Statute
§ 14-208.9A is not applicable here either since that statute specifically deals with verification of
registration. See N.C. Gen. Stat. § 14-208.9A (2013).

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                                  Opinion of the Court



      North Carolina General Statute § 14-208.9(a) provides in pertinent part:

                    (a) 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 third business day
             after the change to the sheriff of the county with whom the
             person had last registered. If the person moves to another
             county, the person shall also report in person to the sheriff
             of the new county and provide written notice of the person’s
             address not later than the tenth day after the change of
             address.

N.C. Gen. Stat. § 14-208.9(a) (2013) (emphasis added).

      With this background in mind, we turn to defendant’s double jeopardy

argument.    Defendant contends that the trial court violated his constitutional

protection against double jeopardy by entering judgment for convictions under both

North Carolina General Statute § 14-208.11(a)(2) and (a)(7). “The standard of review

for this issue is de novo, as the trial court made a legal conclusion regarding the

defendant’s exposure to double jeopardy.” State v. Fox, 216 N.C. App. 144, 147, 721

S.E.2d 673, 675 (2011) (citation and quotation marks omitted). “[T]he applicable test

to determine whether double jeopardy attaches in a single prosecution is whether

each statute requires proof of a fact which the others do not.” State v. Mulder, 233

N.C. App. 82, 89, 755 S.E.2d 98, 102 (2014) (citation, quotation marks, and brackets

omitted).

      Turning back to the statute under which defendant was convicted:

             (a)    A person required by this Article to register who
             willfully does any of the following is guilty of a Class F


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                                   Opinion of the Court



             felony:
                    ....
                    (2)    Fails to notify the last registering sheriff of a
                           change of address as required by this Article.
                    ....
                     (7)   Fails to report in person to the sheriff’s office
                           as required by G.S. 14-208.7, 14-208.9, and
                           14-208.9A.

N.C. Gen. Stat. § 14-208.11(a).      Our Court has already plainly stated that “[a]

conviction for violating N.C. Gen. Stat. §§ 14–208.9(a) and 14–208.11(a)(2) requires

proof beyond a reasonable doubt that: (1) the defendant is a person required to

register; (2) the defendant changes his or her address; and (3) the defendant fails to

notify the last registering sheriff of the change of address [.]” See State v. Worley, 198

N.C. App. 329, 334, 679 S.E.2d 857, 861 (2009) (emphasis added) (citations, quotation

marks, ellipses, and brackets omitted). As to the elements of North Carolina General

Statute § 14-208.11(a)(7), we have already established that in this particular case

North Carolina General Statute § 14-208.11(a)(7) is controlled by the elements in

North Carolina General Statute § 14-208.9 because the other two statutes noted in

(a)(7) regarding initial registration and verification of registration are not applicable

here. See N.C. Gen. Stat. § 14-208.11(a)(7); see also N.C. Gen. Stat. § 14-208.9A;

Crockett, 368 N.C. at 722, 782 S.E.2d at 882. Worley clearly states that “N.C. Gen.

Stat. §§ 14–208.9(a) and 14–208.11(a)(2)” have the exact same elements. See Worley,

198 N.C. App. at 334, 679 S.E.2d at 861. Thus, in this particular instance both § 14-

208.11(a)(2) and (a)(7) required defendant to inform the sheriff of his change of


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                                        Opinion of the Court



address pursuant to the requirements in § 14-208.9(a). See N.C. Gen. Stat. § 14-

208.11(a)(2) and (7); Worley, 198 N.C. App. at 334, 679 S.E.2d at 861.

       The State attempts to distinguish the elements of North Carolina General

Statute § 14-208.11(a)(2) and (7) by arguing

               the trial court’s charge of failing to notify the last
               registering sheriff of a change of address was based upon
               Defendant’s failure to provide written notice to the sheriff
               only . . .; on the other hand, the charge of failing to report
               in person as required by N.C. Gen. Stat. § 14-208.92 was
               based upon Defendant’s failure to report in person for the
               purpose of providing the written notification.

But the State’s attempted distinction between (a)(2) and (a)(7) is eliminated by North

Carolina General Statute § 14-208.9, which applies equally to both subsections. See

N.C. Gen. Stat. § 14-208.11(a)(2) and (7); Worley, 198 N.C. App. at 334, 679 S.E.2d at

861. North Carolina General Statute § 14-208.9 requires a registrant to “report in

person and provide written notice of the new address[,]” N.C. Gen. Stat. § 14-208.9

(emphasis added), and this language is applicable to both § 14-208.11(a)(2) and (a)(7).

See State v. Holmes, 149 N.C. App. 572, 576, 562 S.E.2d 26, 30 (2002) (“N.C.G.S. §

14–208.9 and the statute in question, § 14–208.11, are both within Article 27A, which

defines the sex offender and public protection registration programs. Because they

deal with the same subject matter, they must be construed in pari materia to give



       2  To be clear, defendant was not indicted under North Carolina General Statute § 14-208.9;
the State charged defendant under § 14-208.11(a)(7) but that statute incorporates the requirements of
§ 14-208.9 in this case.

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                                   Opinion of the Court



effect to each.”)   Because in this case North Carolina General Statute § 14-

208.11(a)(2) and (a)(7) have the same elements, one of defendant’s convictions must

be vacated for violation of double jeopardy. See generally State v. Dye, 139 N.C. App.

148, 153, 532 S.E.2d 574, 578 (2000) (“Under the circumstances of the instant case,

therefore, the Double Jeopardy Clause constituted a bar to defendant’s subsequent

prosecution upon the domestic criminal trespass charge, and her conviction must be

vacated[.]” (citation omitted)).

      Furthermore, to the extent the State argues the legislature intended North

Carolina General Statute § 14-208.11(a)(2) and (a)(7) to be punished separately, we

disagree. The entirety of the State’s argument focuses upon “the express duty of

registered offenders to report in person” versus “the purpose of requiring written

notice[,]” but again, in this case both North Carolina General Statute § 14-

208.11(a)(2) and (a)(7) required defendant to “report in person and provide written

notice of the new address” pursuant to North Carolina General Statute § 14-208.9.

N.C. Gen. Stat. § 14-208.9 (emphasis added). There is simply no legal or practical

difference between the two subsections as applied here. Therefore, we vacate one of

defendant’s convictions under North Carolina General Statute § 14-208.11 and

remand for defendant to be resentenced on the remaining conviction.

                                   III.   Motion to Dismiss




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                                  Opinion of the Court



      Defendant also contends that “the trial court erred in denying . . . [his] motion

to dismiss when the State failed to present sufficient evidence that . . . [he] had

changed his address.” (Original in all caps.)            Defendant contends that “[t]he

undisputed evidence showed that . . . [he] initially registered in September 2011 with

an address of . . . Shoals Road. . . . He was incarcerated at times following that

registration, but always returned to the same address.” Thus, the only element

defendant challenges is whether his address had changed.

                    When ruling on a motion to dismiss for insufficient
             evidence, the trial court must consider the record evidence
             in the light most favorable to the State, drawing all
             reasonable inferences in the State’s favor. The State is
             entitled to every reasonable intendment and inference to
             be drawn from the evidence, and any contradictions and
             discrepancies are to be resolved in favor of the State. The
             only issue before the trial court in such instances is
             whether there is substantial evidence of each essential
             element of the offense charged and of the defendant being
             the perpetrator of the offense. Substantial evidence is
             relevant evidence that a reasonable mind might accept as
             adequate to support a conclusion. As long as the evidence
             permits a reasonable inference of the defendant’s guilt, a
             motion to dismiss is properly denied even though the
             evidence also permits a reasonable inference of the
             defendant’s innocence.

Worley, 198 N.C. App. at 333, 679 S.E.2d at 861 (citations and quotation marks

omitted).




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                                   ST. V. REYNOLDS

                                  Opinion of the Court



      The undisputed evidence establishes that although defendant had registered

in September of 2011, he was thereafter incarcerated and released in January of

2013. In reversing a decision of this Court, our Supreme Court clarified,

             [a]s long as the registrant remains incarcerated, his
             address is that of the facility or institution in which he is
             confined. Although the State did not elicit any evidence
             tending to show the location at which defendant had been
             incarcerated prior to his release from the custody of the
             Division of Adult Correction on 14 November 2012, his
             address necessarily changed when he was released from
             incarceration. As a result, in accordance with N.C.G.S. §
             14–208.9(a), defendant was required to 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.
             Although defendant had last registered with the Gaston
             County Sheriff’s Office, he failed to report in person or
             provide written notice of the fact that his address had
             changed from the facility or institution in which he had
             been incarcerated to his new residence following his release
             from the custody of the Division of Adult Correction on 14
             November 2012.

State v. Barnett, 368 N.C. 710, 714-15, 782 S.E.2d 885, 889-90 (2016) (citations,

quotation marks, ellipses, brackets, and footnote omitted).

      Defendant argues in response to Barnett that he was only in prison for a

month, not long enough to establish a new address. But our Supreme Court did not

establish a minimum time period of incarceration for the facility imprisoning a

registrant to be considered a new address; rather, the Court stated, “[a]s long as the

registrant remains incarcerated, his address is that of the facility or institution in



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                                     Opinion of the Court



which he is confined.” Id. at 714, 782 S.E.2d at 889. Defendant was not merely in

jail overnight but rather was incarcerated for “a 30-day contempt period[,]” so Barnett

still controls. See id. By showing defendant had been incarcerated for approximately

a month and then released, the State established that defendant had a new address,

see id., and thus the trial court properly denied defendant’s motion to dismiss. This

argument is overruled.

                                     IV.     Sentencing

      Defendant next contends that “[t]he trial court sentenced . . . [him] in violation

of N.C. GEN. STAT. § 15A-1335 when [it] imposed a sentence of 117-153 months

when . . . [he] had previously been sentenced to 87-117 months for the same conduct.”

As an initial matter, the State contends that because defendant challenges his

presumptive range sentence, defendant has no right to appeal. But since we are

vacating one of defendant’s convictions he will necessarily need to be resentenced.

Thus, we need not address this issue.

                                V.         State v. Barnett

      Defendant next contends that the trial court erred by not allowing his counsel

to refer to State v. Barnett, 239 N.C. App. 101, 768 S.E.2d 327 (2015) in his closing

argument. But since defendant’s trial, this Court’s opinion in State v. Barnett was

reversed by the Supreme Court in Barnett, 368 N.C. 710, 782 S.E.2d 885. Even if

defendant should have been allowed to argue based upon State v. Barnett, 239 N.C.



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                                   Opinion of the Court



App. 101, 768 S.E.2d 327, at the time of his trial, there is no way to correct the error

now. And even if this Court granted a new trial as defendant requests, defendant

would not now be allowed to rely upon State v. Barnett, 239 N.C. App. 101, 768 S.E.2d

327, as it is not the law. Therefore, this issue is moot. See generally Roberts v.

Madison Cty. Realtors Ass'n, Inc., 344 N.C. 394, 398–99, 474 S.E.2d 783, 787 (1996)

(“A case is moot when a determination is sought on a matter which, when rendered,

cannot have any practical effect on the existing controversy.” (quotation marks

omitted)).

                                  VI.    Indictments

      Defendant argues that the indictments are fatally defective because they fail

to allege an essential element of North Carolina General Statute § 14-208.11(a)(2)

and (a)(7). Defendant’s argument contends

             [t]he indictments in this case are fatally defective because
             they failed to allege that Mr. Reynolds changed his address
             which is an essential element of the offense of failing to
             report or notify of an address change. Rather, the
             indictments only allege Mr. Reynolds failed to appear in
             person and provide written notice of his address after his
             release from incarceration.

(Quotation marks omitted.) “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 question of what is required in an indictment for crimes under North



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                                 Opinion of the Court



Carolina General Statute § 14-208.11 has been answered previously by this Court

and our Supreme Court; for a thorough review consider our Supreme Court’s recent

opinion of State v. Williams, 368 N.C. 620, 781 S.E.2d 268 (2016). Ultimately, the

Williams Court

            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. 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 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.

368 N.C. 620, 626, 781 S.E.2d 268, 272–73 (2016) (citations and quotation marks

omitted).

      Here, one indictment alleged that

            as a person required by Article 27A of Chapter 14 of the
            General Statutes to register as a sex offender, fail to notify
            the last registering Sheriff, Graham Atkinson, of an
            address change by failing to appear in person and provide
            written notice of his address after his release from


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                                    Opinion of the Court



             incarceration[, and]

the other indictment alleged that

             as a person required by Article 27A of Chapter 14 of the
             General Statutes to register as a sex offender, fail to report
             in person to the Sheriff’s Office as required by N.C.G.S. 14-
             208.9(a) by failing to appear in person and provide written
             notice of his address after his release from incarceration.

Each indictment “substantially tracks the language of . . . the statute under which

he was charged, thereby providing defendant adequate notice[.]” Id. at 626, 781

S.E.2d at 273. Therefore, this argument is overruled.

                               VII.     Jury Instructions

      Lastly, defendant contends that “the trial court plainly erred when it varied

from the pattern instruction and failed to instruct on all elements of the offense of

failure to report an address change.” (Original in all caps.) This argument is tied to

defendant’s double jeopardy argument as he contends that “had the jury been

properly instructed, they probably would have found . . . [him] guilty of only one

offense, as even the trial court recognized that pattern instruction ‘lumps it all into

one charge,’ although in this case the State ‘broke it up into two.’” Because we are

vacating one of defendant’s convictions, we need not address this issue.

                                    VIII. Conclusion

      In conclusion, we vacate one of defendant’s two convictions under North

Carolina General Statute § 14-208.11(a) on the basis that his right to be free from



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double jeopardy was violated. Since we are vacating one conviction, we remand for

resentencing. As to all other issues, we find no error.

      VACATED in part; NO ERROR in part; REMANDED FOR RESENTENCING.

      Chief Judge McGEE and Judge CALABRIA concur.




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