               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA14-1150

                                 Filed: 2 June 2015

Catawba County, No. 13 CRS 01017, 13 CRS 51481

STATE OF NORTH CAROLINA

              v.

DEXTER LEON SURRATT, Defendant.


      Appeal by defendant from judgment entered 29 April 2014 by Judge Yvonne

Mims Evans in Catawba County Superior Court. Heard in the Court of Appeals 7

April 2015.


      Attorney General Roy Cooper, by Assistant Attorney General Laura Askins, for
      the State.

      James W. Carter for defendant.


      ELMORE, Judge.


      On 7 January 2013, Dexter Leon Surratt, Jr. (defendant) was indicted in 13

CRS 01017 for failing to change his address as a sex offender pursuant to N.C Gen.

Stat. § 14-208.11. On 20 May 2013, defendant was indicted in 13 CRS 51481 for

falsification of information under N.C. Gen. Stat. § 14-208.11. Following a jury trial,

defendant was found guilty of both charges on 29 April 2014.          The trial court

consolidated the offenses for sentencing and imposed an active sentence with a

minimum term of eighteen months and a maximum term of thirty-one months
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                                   Opinion of the Court



imprisonment. On appeal, defendant argues that the trial court erred in failing to

grant his motions to dismiss on the basis that the State failed to prove that (1) he was

required to register as a sex offender, and (2) that he falsified information for

purposes of being charged with violating N.C. Gen. Stat. § 14-208.11. After careful

consideration, we hold that the trial court did not err in failing to grant defendant’s

motion to dismiss based on his contention that he was not required to register as a

sex offender. However, we agree with defendant that the trial court erred in denying

his motion to dismiss the charge of falsifying information. Accordingly, we vacate

defendant’s convictions, in part, and remand for a new sentencing hearing.


                                      II. Background


      On 14 June 1994, defendant was convicted of the sexual offense of taking

indecent liberties with a child. Defendant was sentenced to a three-year active

sentence under the Fair Sentencing Act. After his release, defendant was required

to register his address in the sheriff’s office in the county in which he lived in order

to be included in the sex offender registry. According to the sex offender registration

records, defendant first registered as a sex offender on 24 January 1999.


      On 7 September 2012, defendant registered a change in his address from 238

32nd Street Southwest to 1470 14th Avenue Northeast in Hickory (the address)—his

father’s residence. The SBI sent a certified verification letter to the address and


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                                   Opinion of the Court



requested that the postal service return it to the Catawba County Sheriff’s Office if it

could not be delivered. The letter was returned “undeliverable.” Law enforcement

made several unsuccessful attempts to contact defendant at the address. Specifically,

on 17 November 2012, Officer James Mathis of the Hickory Police Department went

to the address and spoke with defendant’s sister, Tiara Rippy. Ms. Rippy informed

Officer Mathis that defendant and his father had had an argument a month prior and

that defendant’s father banished defendant from the residence. Ms. Rippy testified

that she visited the residence two or three times per week and on weekends and

defendant was never present in the residence after the argument with his father.


      Lieutenant Lynn Baker testified that he encountered defendant at the Sheriff’s

Office in February 2013. At that time, defendant maintained that he was residing at

1470 14th Avenue Northeast and claimed that he was mistakenly charged with

failing to register a change in his address. Lieutenant Baker stated that defendant

did not execute an address verification form, or any other forms, during the

encounter.


      Between 11 March and 15 March 2013, Deputy Tom Scarborough attempted

to make contact with defendant at 147 14th Avenue Northeast. Upon visiting the

address, Deputy Scarborough encountered defendant’s father, Mr. Stanley Johnson.

Deputy Scarborough provided Mr. Johnson with an address verification form. Mr.

Johnson signed the form, marking that defendant did not reside at the residence.

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Mr. Johnson testified that he lived alone, but he admitted that defendant stayed with

him for several weeks. Mr. Johnson recalled arguing with defendant and asking

defendant to vacate the residence.


      Defendant testified on his own behalf at trial. Defendant alleged that he

moved into his father’s residence in September 2012, at which time he registered

1470 14th Avenue Northeast as his address with the Sheriff’s Office. Defendant

stated that he continued to reside at that address with his father until March 2013.

Defendant acknowledged that he and his father had argued, but he denied leaving

the residence and residing elsewhere.


                                        II. Analysis


   A. Sex Offender Registration Requirements


      Defendant argues that the trial court erred in failing to grant his motion to

dismiss because the State presented insufficient evidence that defendant was

required to register as a sex offender. 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). “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



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                                  Opinion of the Court



included therein, and (2) of defendant’s being the perpetrator of such offense. If so,

the motion is properly denied.” State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918

(1993).


             In 1995, North Carolina enacted the Amy Jackson Law,
             N.C. Gen. Stat. § 14–208.5 (2003) et seq. (‘Article 27A’),
             requiring individuals convicted of certain sex-related
             offenses to register their addresses and other information
             with law enforcement agencies. The stated purpose of the
             law [was] to curtail recidivism because sex offenders often
             pose a high risk of engaging in sex offenses even after being
             released from incarceration or commitment and . . .
             protection of the public from sex offenders is of paramount
             governmental interest.



State v. White, 162 N.C. App. 183, 185, 590 S.E.2d 448, 450 (2004) (quoting N.C. Gen.

Stat. § 14–208.5).


      Article 27A applied to all offenders convicted of a sex offense on or after 1

January 1996 and to all offenders who were presently serving an active sentence. Id.

see also 1995 N.C. Sess. Laws ch. 545, § 3. North Carolina codified the requirements

for registration under N.C. Gen. Stat. § 14-208.7 (1996), which provided that a

current resident of North Carolina must register within 10 days of release from a

penal institution and maintain that registration for 10 years following his or her

release from a penal institution.    Id.    (emphasis added).    If no active term of




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                                    Opinion of the Court



imprisonment was imposed, registration was to be maintained for a period of 10 years

following each conviction for a reportable offense. Id.


      The registration law was revised in 2006 to require that registration on the sex

offender registry be maintained for a period of 10 years following the date of the initial

county registration.   N.C. Gen. Stat. § 14-208.7(a) (2006).       This statute became

effective on 1 December 2006. In In re Hamilton, this Court clarified that the 2006

amendment “plainly and explicitly” applied retroactively to those offenders presently

serving time for a sexual offense. 220 N.C. App. 350, 355, 725 S.E.2d 393, 397 (2012)

This Court held:


             The General Assembly did not explicitly state that this
             amendment was to apply retroactively to persons already
             on the registry. However, reading section 14–208.7 in pari
             materia with section 14–208.12A, we must construe the
             abolition of the automatic termination provision as
             applying to persons for whom the period of registration
             would terminate on or after 1 December 2006.

Id. at 355-56, 725 S.E.2d at 397.

      In 2008, the registration law was amended once more. The revision increased

the registration period from ten to thirty years following the date of initial county

registration, unless the defendant, after ten years of registration, successfully

petitioned the court to shorten his or her registration period. N.C. Gen. Stat. § 14-

208.7 (2008) as amended by 2008 N.C. Sess. Laws ch. 117 §. 8.



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                                   Opinion of the Court



      Here, defendant was convicted of failing to change his address as a sex offender

under N.C Gen. Stat § 14.208.11. This charge stemmed from defendant’s 14 June

1994 conviction of taking indecent liberties with a child—a reportable offense. On

appeal, defendant notes that the Amy Jackson Law was not in effect when defendant

was convicted of the indecent liberties charge, and he argues that the State presented

insufficient evidence at trial that he was required to register a change in his address

on the basis that the sex offender registration program did not apply to him. More

specifically, defendant contends that the State failed to prove that defendant was

released from prison for a reportable offense on or after 1 January 1996.


      Defendant is correct in that the record on appeal is devoid of defendant’s

release date for the June 1994 indecent liberties conviction.            Defendant was

sentenced to three years imprisonment for the offense, but the record contains only

the date on which defendant first registered as a sex offender, which was 24 January

1999. However, the fact that the release date is not part of the record does not

automatically warrant the conclusion that defendant was not required to register

when he was indicted in January 2013 for failing to change his address under N.C.

Gen. Stat. § 14A-208.11.


      Pursuant to the North Carolina Rules of Evidence, Rule 201, this Court elects

to take judicial notice of defendant’s release date for the indecent liberties conviction,

which was 24 September 1995. We also take judicial notice of the fact that defendant

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                                  Opinion of the Court



was not actually released from incarceration on 24 September 1995. This date was

merely defendant’s “on paper” release date or “paper parole” date.         Defendant

remained incarcerated after being “released” from the indecent liberties conviction in

order to serve a consecutive sentence resulting from a conviction for committing a

crime against nature. Defendant was not physically released from prison and placed

on parole until 24 January 1999. Again, the record shows that it was on this date

that defendant first registered as a sex offender.


      Upon review, this Court holds that it is defendant’s actual release date of 24

January 1999 that controls the sentencing outcome of the instant case, not the “on

paper” release date of 24 September 1995. In making such a determination, we look

to N.C. Gen. Stat. § 15A-1354(b) (2013), which provides: “In determining the effect

of consecutive sentences . . . the Division of Adult Correction of the Department of

Public Safety must treat the defendant as though he has been committed for a single

term[.]”; see also Robbins v. Freeman, 127 N.C. App. 162, 164-65, 487 S.E.2d 771,

773, review allowed, writ allowed, 347 N.C. 270, 493 S.E.2d 746 (1997) and aff’d, 347

N.C. 664, 496 S.E.2d 375 (1998) (concluding that under N.C. Gen. Stat. § 15A-1354,

an inmate serving consecutive sentences shall have the date of his parole eligibility

calculated as if the inmate were serving a single term).        Accordingly, when a

defendant is sentenced to consecutive prison terms, the sentences are to be calculated




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                                   Opinion of the Court



as a single term and the effective release date for purposes of parole eligibility and

the like is the date on which a defendant is physically released from incarceration.


       In this case, the Amy Jackson Law was applicable to defendant because it took

effect in January 1996 and applied to offenders who were then serving time for a

reportable sexual offense. Defendant remained incarcerated until January 1999.

Importantly, defendant was required to register as a sex offender when the 2008

amendment was passed. Again, the 2008 amendment increased the registration

period from ten to thirty years following the date of initial county registration, unless

after ten years of registration, the offender successfully petitioned the court to

shorten the registration period. Just as this Court held that the 2006 amendment

applied retroactively to those offenders who were required to register when the

amendment took effect, this Court is of the opinion that the 2008 amendment likewise

applies retroactively. See Hamilton, supra. Accordingly, defendant was required to

maintain his registration for a period of thirty years from the date of his initial county

registration in 1999.


      We recognize that the 2008 amendment affords a sex offender the opportunity

to petition the trial court to shorten his or her registration period after meeting the

ten-year registration requirement. As such, defendant could have been granted an

early release from the sex offender registry had he taken advantage of his right to

petition for a lesser registration period. He elected not to do so. Further, this Court

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has recently held that when a person claims that he or she was never required to

register in the first place, as defendant argues here, a declaratory judgment action is

a more appropriate way of obtaining a ruling upon the registration requirement. In

re Bunch, ___ N.C. App. ___, ___, 742 S.E.2d 596, 599, review denied, 747 S.E.2d 541

(2013). In lieu of bringing a declaratory judgment action, it is unlikely that an

offender can successfully petition this Court to find that he or she was never required

to register provided the State objects to such argument. See id. (cautioning those who

“seek to terminate registration as a sex offender under N.C. Gen. Stat. § 14–208.12A,

for any reason other than fulfillment of the ten years of registration and other

requirements of N.C. Gen. Stat. § 14–208.12A in the future will probably not succeed

if the State does raise any objection or argument in opposition to the request”).


      Given this, defendant should have considered filing a declaratory judgment

action to raise the issue that is now before us on appeal. As it stands, we hold that

the trial court did not err in denying defendant’s motion to dismiss. Defendant was

required to register a change in his address at the time he was indicted for the crime

charged. We overrule defendant’s argument.


   B. Falsification of Information


      Defendant argues that the trial court erred by denying his motion to dismiss

the charge of submitting information under false pretenses to the sex offender


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registry where there was no evidence presented by the State that he willfully gave an

address he knew to be false when he registered his address in Catawba County. We

agree.


         Defendant was charged with submitting information under false pretenses in

violation of N.C. Gen. Stat. § 14-208.11(a)(4), which is a crime that is subject to the

North Carolina’s Sex Offender Registration Act. According to N.C. Gen. Stat. § 14-

208.9A(a)(1), each year on the anniversary of the person’s initial registration date,

and again six months later, the Division of Criminal Information is required to send

a nonforwardable verification form to the registrant at the last reported address to

verify his or her address. N.C. Gen. Stat. § 14-208.9A(a)(1) (2013). The form must

be signed and must indicate “[w]hether the person still resides at the address last

reported to the sheriff. If the person has a different address, then the person shall

indicate that fact and the new address.” N.C. Gen. Stat. § 14-208.9A. The statute

defendant was charged with violating, N.C. Gen. Stat. § 14-208.11, also provides, in

part, that:


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

               (4) Forges or submits under false pretenses the information
               or verification notices required under this Article.

N.C. Gen. Stat. § 14-208.11(a)(4) (2013).


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      The issue before this Court is whether defendant’s oral verification to law

enforcement that he continued to reside at his registered address warranted a charge

of forging or falsifying information.     On appeal, defendant admits that he told

Lieutenant Baker in their February 2013 encounter at the Sheriff’s Office that he

continued to reside at 1470 14th Avenue Northeast. However, as defendant never

executed a verification during the meeting or at any other time, he contends that it

was error for the State to charge him with falsifying information under N.C. Gen.

Stat. § 14-208.9A(a)(4).    More specifically, defendant argues, “[t]he information

[defendant] verbally provided to Lt. Baker was not required. It was not a verification

form nor was it information for a verification form. Therefore it could not have

qualified as a verification notice ‘required’ under Article 27A.”


       Alternatively, the State’s position is that defendant is guilty of the charged

crime because he willfully made a false statement to Lieutenant Baker at the Sheriff’s

Office in February 2013—stating that he continued to reside at 1470 14th Avenue

Northeast. On appeal, the State argues:


             Defendant did not live at 1470 14th Avenue Northeast at
             the time that he verified his address to Lt. Baker. The false
             information he provided led Deputy Scarborough to
             attempt to contact Defendant at the address multiple
             times, eventually resulting in a verification form signed by
             Mr. Johnson saying that defendant did not live at that
             address.    Therefore, . . . [d]efendant provided false
             information for a verification notice.


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                                    Opinion of the Court



      The evidence in the instant case shows that defendant met with Lieutenant

Baker of the Catawba County Sheriff’s Department in February 2013, several months

after being charged with failing to register a change of address.         According to

Lieutenant Baker, defendant verbally informed Lieutenant Baker that defendant

was living at the address he had registered in September 2012. However, defendant

neither filled out an address verification form during the encounter nor did he

otherwise indicate in writing that he continued to reside at his registered address.


      On 15 March 2013, in an attempt to verify defendant’s address, Deputy

Scarborough went to the address in search of defendant. Mr. Johnson, defendant’s

father, was at the residence and informed Deputy Scarborough that defendant did

not reside there. Mr. Johnson executed an address verification form indicating such.

At no time during February or March 2013 did defendant himself execute the address

verification form.


      In State v. Pressley, this Court held that “[t]he only rational reading of N.C.

Gen. Stat. § 14–208.11 is that it criminalizes the provision of false or misleading

information on forms submitted pursuant to the Act—regardless of when these forms

are submitted.”      ___ N.C. App. ___, ___, 762 S.E.2d 374, 377 (2014), review denied,

___ N.C. App. ___, ___, 763 S.E.2d 382 (2014) (emphasis added). In the instant case,

the State was unable to present any evidence that defendant provided false or

misleading information on a verification form. In fact, Lieutenant Baker admitted at

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                                  Opinion of the Court



trial that he never requested that defendant execute the verification form.    Thus,

there is no indication that defendant ever executed a verification form—and, more

importantly, no evidence that defendant forged or submitted under false pretenses

the verification notice required by N.C. Gen. Stat. § 14-208.9A.


      Should we rule in favor of the State, this Court would be extending the scope

of N.C. Gen. Stat. § 14-208.9A beyond its intended purpose such that a defendant

could be charged with falsifying or forging information merely by telling a lie to an

officer about his current address. Again, the intent of the statute is to insure that

officers possess complete and accurate information as to the addresses of registered

sex offenders. We cannot extend the purpose of the statute to punish offenders for

untruths they may tell law enforcement. An executed verification form is required

before one can be charged with falsifying or forging the document. Accordingly, we

hold that the trial court erred in denying defendant’s motion to dismiss this charge

based on the State’s failure to prove that defendant submitted under false pretenses

the verification notice required under Article 27A.


      No error, in part; vacated and remanded, in part; new sentencing hearing.


      Judges GEER and DILLON concur.




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