An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1372
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


STATE OF NORTH CAROLINA

      v.                                      Ashe County
                                              No. 10 CRS 51166
TOMMY LEE OSBORNE



      Appeal by Defendant from judgment entered 11 July 2013 by

Judge Ronald E. Spivey in Ashe County Superior Court.                     Heard in

the Court of Appeals 23 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Catherine F. Jordan, for the State.

      Farber Law Firm, P.L.L.C., by Sarah Jessica Farber, for
      Defendant.


      STEPHENS, Judge.


      Defendant Tommy Lee Osborne appeals from judgment entered

after a jury found him guilty of failing to notify the sheriff’s

office when he moved to a new address.              We vacate the judgment.

      The    evidence     at   trial    tended    to    show   that,    in    1993,

Defendant     was   convicted     of   an   offense    that    required      him   to

register as a sex offender.             On 11 June 2010, Defendant moved
                                             -2-
from Forsyth County to Ashe County.                   Defendant provided a change

of address form to the Ashe County Sheriff’s Office (“ACSO”)

indicating that his new address was 309 North Main Street in

Jefferson.

       The    State       Bureau   of        Investigation     sends     verification

letters      to    sex    offenders     on    the    anniversary      dates   of   their

registration.            Once a sex offender receives the notice, he has

three days to take the notice to the sheriff’s office to be

signed.       In November 2010, a verification letter was sent to

Defendant, but was returned as undeliverable.

       Upon       being    notified     about        the   letter’s     return,    ACSO

Sergeant Randy Lewis went to 309 North Main Street looking for

Defendant.         Sgt. Lewis spoke with James Bingham, Defendant’s

brother-in-law.           Bingham told Sgt. Lewis that Defendant had not

lived at that address for “a few weeks.”                    Bingham said Defendant

“had moved to a trailer down in east Jefferson” and provided

Sgt.    Lewis      with     directions       to     that   location.      Sgt.     Lewis

obtained a warrant for Defendant’s arrest for failure to notify

the ACSO of his new address, and on 29 November 2010, located

Defendant living at the mobile home park described by Bingham.
                                        -3-
     On    14    March   2011,    the   Ashe    County    grand       jury   indicted

Defendant.1      On 10 July 2013, a jury found Defendant guilty of

failing to notify the ACSO of his change in address as required

by N.C. Gen. Stat. § 14-208.11(a)(2).                 Defendant then entered a

no contest plea to having attained habitual felon status.                           The

trial court imposed an active sentence of 58-79 months.

     Defendant appeals, arguing that the trial court erred in

denying    his    motion    to    dismiss      when    there    was    insufficient

evidence   to    show    that    he   had   moved.       We    conclude      that   the

indictment purporting to charge Defendant with violating section

14-208.11(a)(2) was fatally flawed.               Accordingly, we vacate the

judgment    entered      upon     Defendant’s         conviction      as     well    as

Defendant’s nolo contendere habitual felon plea.

     On appeal, neither party has raised any issue regarding the

indictment.      However,

            [i]t is well settled that a valid bill of
            indictment is essential to the jurisdiction
            of the trial court to try an accused for a
            felony.   Lack of jurisdiction in the trial
            court due to a fatally defective indictment
            requires the appellate court to arrest
            judgment or vacate any order entered without
            authority.    The issue of subject matter
            jurisdiction may be raised at any time, even
            for the first time on appeal.    The subject
            matter jurisdiction of the trial court is a

1
  The specifics of the indictment, which are dispositive of this
appeal, are discussed in detail below.
                               -4-
           question of law, which this Court reviews de
           novo on appeal.

State v. Barnett, __ N.C. App. __, __, 733 S.E.2d 95, 97-98

(2012) (citations, internal quotation marks, some brackets, and

ellipsis omitted).    Further, “subject matter jurisdiction may

not be waived, and this Court has not only the power, but the

duty to address the trial court’s subject matter jurisdiction on

its own motion or ex mero motu.”     Rinna v. Steven B., 201 N.C.

App. 532, 537, 687 S.E.2d 496, 500 (2009) (citation omitted).

    An indictment charging a felony must set forth:

           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.

N.C. Gen. Stat. § 15A-924(a)(5) (2013).       The   requirement is

intended

           (1) [to provide] 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.
                                        -5-
State v. Jones, __ N.C. __, __, 734 S.E.2d 617, 627-28 (2014)

(citations      and    internal       quotation          marks    omitted;      some

alterations in original).

           In order to be valid and thus confer
           jurisdiction   upon   the  trial   court,  an
           indictment charging a statutory offense must
           allege all of the essential elements of the
           offense. The indictment is sufficient if it
           charges the offense in a plain, intelligible
           and explicit manner.    Indictments need only
           allege the ultimate facts constituting each
           element of the criminal offense and an
           indictment couched in the language of the
           statute is generally sufficient to charge
           the statutory offense.    While an indictment
           should give a defendant sufficient notice of
           the charges against him, it should not be
           subjected to hyper technical scrutiny with
           respect to form.    The general rule in this
           State and elsewhere is that an indictment
           for a statutory offense is sufficient, if
           the offense is charged in the words of the
           statute, either literally or substantially,
           or in equivalent words.

Barnett,   __   N.C.     App.    at   __,   733   S.E.2d     at   98   (citations,

internal     quotation     marks,     brackets,      and     ellipses       omitted;

emphasis added).

    A person who is required to register as a sex offender

commits a felony if he “[f]ails to notify the last registering

sheriff of a change of address as required by this Article.”

N.C. Gen. Stat. § 14-208.11(a)(2) (2013).                  In turn, section 14-

208.9(a)   provides      that,    “[i]f     a   person    required     to   register
                                           -6-
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.”                       N.C. Gen. Stat. § 14-

208.9(a)     (2013).2      When     read    in    pari      materia,      sections      14-

208.11(a)(2)       and    14-208.9(a)       provide         that    a     sex    offender

required to register his address with the sheriff who fails to

notify the sheriff of a change of address in writing within

three business days may be found guilty of a felony.                             State v.

Holmes, 149 N.C. App. 572, 576, 562 S.E.2d 26, 30 (2002).                             Thus,

“[t]he     three    essential     elements       of   the    offense      described     in

[section] 14-208.9 are:           (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     within      three     business      days    of   the

change.”     Barnett, __ N.C. App. at __, 733 S.E.2d at 98.

      Here, the indictment alleges that Defendant violated N.C.

Gen. Stat. § 14-208.11A(2), but that statute makes it a felony

to harbor or assist sex offenders who are required to register

in evading registration as required by law.                    See N.C. Gen. Stat.

2
  This statute has been amended several times since the date of
Defendant’s alleged failure to register, but none of those
amendments affected subsection (a) or the case law discussed in
this opinion.
                                      -7-
§ 14-208.11A (2013) (entitled “Duty to report noncompliance of a

sex   offender;     penalty    for      failure    to    report        in    certain

circumstances”).        The   judgment      also   misstates          the   relevant

statute as section 14-208.11A(2).            However, the language of the

indictment clearly attempts to allege a violation of section 14-

208.11(a)(2):

            The jurors for the State upon their oath
            present that on or about the 23rd day of
            November[] 2010[] in the county named above
            the   defendant   named   above   unlawfully,
            willfully and feloniously did as a person
            required by Article 27A of Chapter 14 of the
            North Carolina General Statutes to register,
            did move from his last registered address,
            309   N.   Main  Street,   Jefferson,   North
            Carolina, without notifying the Ashe County
            Sheriff’s Office within three days of his
            move from that address.

This language largely tracks the operative language of section

14-208.9(a),     with   two   crucial      exceptions:         (1)    it    does   not

allege that Defendant failed to notify the ACSO in writing, and

(2) it does not specify the time requirement as within three

business days of his move to a new address.                          Each of these

defects is fatal to the indictment.

      The phrases “without notifying” and “within three days” are

plainly   not    equivalent   to     the   language     used    in     section     14-

208.9(a).       Simply put, “notifying” is not the same thing as

“provid[ing] written notice” because one can notify verbally as
                                           -8-
well as in writing.              See Holmes, 149 N.C. App. at 578, 562

S.E.2d    at    31     (upholding   the        defendant’s        conviction      where    he

called someone at the sheriff’s department after moving).                               Here,

Defendant       admitted     failing      to    give      written       notice   and   never

alleged that he gave oral notice, instead contending that no

notice    was    required       because    he       did   not   move.       However,      the

ambiguity in the wording employed could create confusion which

would    prejudice       a   defendant         in    preparing      for     trial.        For

example, a defendant indicted for moving “without notifying” the

sheriff’s office might prepare for trial by assembling evidence

showing that he gave oral notice of his move, only to learn at

trial that this evidence was utterly irrelevant.

       Likewise, “within three days” is different from “not later

than the third business day” since not every day is a business

day.     Thus, in preparing for trial, a defendant would believe

the State could prevail by proving that three days had passed

before he notified the sheriff’s office of his move rather than

the    correct       required    showing        that      three     business     days     had

passed.

       For     these    reasons,    the        indictment         was    insufficient      to

charge a violation of section 14-208.11(a)(2).                            Accordingly, we

vacate the judgment entered upon Defendant’s conviction and upon
                                     -9-
his no contest plea to having attained the status of habitual

felon.     See State v. Stevens, 151 N.C. App. 561, 564, 566 S.E.2d

149, 151 (2002) (noting that where a felony conviction has been

vacated,    leaving   no   felony   conviction   to   which   the   habitual

felon indictment may attach, the habitual felon conviction must

also be vacated).

    VACATED.

    Judges HUNTER, ROBERT C., and ERVIN concur.

    Report per Rule 30(e).
