State v. Abshire

¶1dissenting.

¶2I agree with the majority that the trial court had subject matter jurisdiction to hear the case. I disagree, however, with the majority’s conclusion’ that the trial court erred in denying Patricia Dawn Abshire’s (“defendant”) motion to dismiss. Instead, I would hold that there was sufficient evidence to convict defendant under N.C. Gen. Stat. § 14-208.11 (2005), requiring registration of sex offenders, and would therefore find no error.

¶3As the majority correctly notes, in considering a trial court’s denial of a motion to dismiss on the basis of insufficient evidence, “ ‘we consider the evidence in the light most favorable to the State, with all favorable inferences. We disregard defendant’s evidence except to the extent it favors or clarifies the State’s case.’ ” State v. Hinkle, 189 N.C. App. 762, 766, 659 S.E.2d 34, 36 (2008) (citation omitted). In ruling on a motion to dismiss, “ ‘the trial court must determine only whether there is substantial evidence of .each essential element of the offense charged and of the defendant being the perpetrator of the offense.’ ” Id.at-, 659 S.E.2d at 36-37 (citation omitted). Substantial evidence is defined as “ ‘evidence which a reasonable mind might accept as adequate to support a conclusion.’ ” Id. at 766, 659 S.E.2d at 37 (citation omitted).

¶4I agree with the majority that there are three essential elements for the crime of failing to register a “change of address” under N.C. Gen. Stat. § 14-208.11. Those elements are that (1) the defendant is a “[a] person required ... to register,” (2) the defendant “change[s his or her] address,” N.C. Gen. Stat. § 14-208.11, and (3) the defendant fails to “provide written notice of the new address not later than the tenth day after the change to the sheriff of the county with whom *606the person had last registered.” N.C. Gen. Stat. § 14-208.9(a) (2005). In the instant case, defendant only argues that she did not “change [her] address” in order to trigger a violation.

¶5The majority defines “address” for purposes of the Registration Program, “as a place where a registrant resides and where that registrant receives mail or other communication.”4 I do not read the statute so narrowly.

¶6“The purpose of the Article is to prevent 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. Sakobie, 165 N.C. App. 447, 450, 598 S.E.2d 615, 617 (2004) (quoting N.C. Gen. Stat. § 14-208.5 (2003)). An additional purpose of the registry requirement is to assist “law enforcement officers’ efforts to protect communities, conduct investigations, and quickly apprehend offenders who commit [a] sex offense]]” by providing information as to where the registrant resides. N.C. Gen. Stat. § 14.208.5 (2005). Under the majority’s definition, a person required to register could easily thwart these purposes by receiving his or her mail at a post office box. Instead, I would define “address” as the place where the person is actually living, whether temporary or permanent.

¶7This definition of “address” is consistent with our Supreme Court’s definition of residence. Hall v. Board of Elections, 280 N.C. 600, 187 S.E.2d 52 (1972). When distinguishing domicile and residence, the Court held:

Residence simply indicates a person’s actual place of abode, whether permanent or temporary. Domicile denotes one’s permanent, established home as distinguished from a temporary, although actual, place of residence. When absent therefrom, it is the place to which he intends to return (animus revertendi); it is the place where he intends to remain permanently, or for an indefinite length of time, or until some unexpected event shall occur to induce him to leave (animus manendi).

¶8*607Id. at 605,187 S.E.2d at 55. Thus, to serve the purpose intended by the sex offender registration statute, when a person required to register changes residence, even temporarily, that new address is the person’s official “address” which must be registered with the State. Even if defendant in the case at bar was not changing her domicile permanently to her parents’ home, there was sufficient evidence that she changed her residence such that a reasonable jury could find she was required to change her address in accordance with the statute.

¶9Furthermore, I find support for such a definition in the Act’s treatment of non-resident students and for non-resident workers. These classifications of offenders are defined as persons who are not residents of North Carolina and are here for a specific purpose, yet they must register pursuant to N.C. Gen. Stat. § 14-208.7(a)(l). In either situation, it is immaterial as to where the registrant is receiving mail or other communications. Instead, registration is required because the individual will be living in North Carolina for at least some period of time. Thus, the question is whether defendant in this case, was living at her parents’ home and failed to register this change. I would hold that the State provided sufficient evidence that defendant had in fact began living at her parents’ home and failed to register.

¶10The State presented evidence tending to show that defendant was living at her parents’ home in Granite Falls, North Carolina, and not at her registered address in Hudson, North Carolina. Indeed, Ross Price, with whom defendant had been living prior to her move to the unregistered, address, indicated that defendant had not been living with him for three weeks and he did not know where she was. Mr. Price also informed Detective Barlowe that as of 18 September 2006, defendant had been gone from his residence for approximately two to three weeks but may have stayed there a night. Although defendant testified that she kept her own phone line at the Price residence, Mr. Price testified that he suspected defendant had visited his place after she began living with her parents to help him with his phone bill.

¶11Moreover, defendant’s father, Robert Abshire, provided a note on defendant’s behalf that defendant gave to Detective Barlowe when she was arrested. The note indicated that defendant had been staying at Mr. Abshire’s home for five to six weeks prior to her arrest. Additionally, there was evidence defendant completed an affidavit on 18 September 2006 to have charges taken out against her brother for an assault in which she listed her parents’ address in Granite Falls as her residence.

¶12*608This evidence, and the fact that defendant admitted she had only spent two nights at the residence of Mr. Price, support a reasonable inference that defendant changed her address thereby triggering the requirement to notify the sheriff of her new address. Accordingly, I would hold that the trial court did not err in denying defendant’s motion to dismiss and would reject defendant’s assignments of error.