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Constitutional Law; Sexual Offenses--registration of sex
offenders--defendant adjudicated incompetent
N.C.G.S. § 14-208.11, which requires sex offenders to
register their address, is unconstitutional as applied to an
adjudicated incompetent defendant because it fails to afford
sufficient notice under the Fifth and Fourteenth Amendments.
Although the defendant here was provided with sufficient actual
notice to satisfy due process requirements for any reasonable and
prudent man, defendant has been legally determined to be
incapable of managing his own affairs and is not a reasonable and
prudent man. Due to the nature of this statute's requirement and
the wholly innocent act through which it may easily be violated,
proof of an adjudicated incompetent defendant's ability to comply
with this statute must necessarily be an element of the State's
prima facie case, and a test for determining competency to stand
trial is substantially different from one which would determine
whether defendant was competent to comply with the requirements
of this statute.
Judge HORTON concurs in the result.
Attorney General Michael F. Easley, by Assistant Attorney
General John J. Aldridge, III, for the State.
Michael E. Casterline for defendant-appellant.
HUNTER, Judge.
Ricky Neal Young (“defendant”) appeals the jury verdict
convicting him of failing to register his change of address as a
sex offender, in violation of N.C. Gen. Stat. § 14-208.11. Finding
this statute to be unconstitutional as applied to this defendant,
an adjudicated incompetent, we reverse his conviction. The record before us reveals that on 7 July 1989 defendant was
adjudicated incompetent and his mother, Patsy Riddle (“Ms. Riddle”)
was appointed his guardian. In 1991, defendant was charged with
taking indecent liberties with a minor child. However, the trial
court found he lacked capacity to be tried and he was committed to
Dorothea Dix and Broughton Hospitals. In 1998, defendant pled
guilty to the indecent liberties charge and received an eight-year
sentence. Having already served most of his time, he was released
on parole to Country Time Village, a family care home, in May 1998.
While there, his meals were prepared for him, medication dispensed
to him and transportation provided to him for his appointments with
his parole officer.
Detective Tim Israel (“Det. Israel”), of the Buncombe County
Sheriff's Department, testified that on 12 May 1998 defendant came
into the sheriff's department to register his change of address,
listing Country Time Village as his residence. Det. Israel further
testified that, as was the department's procedure, he read the
registration form with all of its requirements to defendant, took
the appropriate information from defendant to fill out the form,
filled out the form, read “Defendant's acknowledgement” [sic] to
defendant and then had defendant sign the form. Det. Israel also
signed the form. Defendant was given a copy of the registration
requirement form. When asked if he knew how defendant got to the
sheriff's department, Det. Israel stated that he did not know how
defendant got there but that someone was with defendant when hearrived.
On 28 June 1998, defendant was released from Country Time
Village and the day following, someone from the sheriff's
department came for him and involuntarily committed him to
Broughton Hospital. On Sunday, 4 October 1998, defendant was
discharged from Broughton, into Ms. Riddle's care. After picking
defendant up, Ms. Riddle testified that she drove defendant to the
Buncombe County Sheriff's Department, where defendant and his
brother went inside to register defendant's change of address. Ms.Riddle further testified that upon her sons' return to the car she
asked, “'Well, did you get it took [sic] care of?' And he says,
'Yeah.' He said, 'I had to talk to some lady on the telephone and
she said everything would be all right.'”
Buncombe County Detective Jerry Dean Owenby, Jr. (“Det.
Owenby”) testified that, on or about 4 October 1998, the department
received a recorded message from Blue Ridge, a mental health
facility, informing them that defendant had been released from
Broughton Hospital, and that defendant's new address was that of
his mother. Det. Owenby further testified that he began calling
around on 5 October 1998 “to see if [defendant] was still at
Country Time Village. . . . I found out that [defendant] had left
Country Time on the 28th of June.” Det. Owenby further testified
that “prior to . . . the voice mail that I got, I had found out
that [defendant] was also -- had been in Broughton Hospital for
some time. I called down there to see if he was still there, and
he wasn't there.” Nevertheless, Det. Owenby never called
defendant's mother's house to contact defendant or his mother in an
effort to get defendant to come in and register. Instead, Det.
Owenby waited the required ten days and, on 15 October 1998, Det.
Owenby charged defendant with “failing to notify the sheriff's
department of a change of address for being a registered sex
offender[.]”
At trial Det. Owenby testified, that on 15 or 16 October, “I
come into to [sic] work one morning and my secretary asked me if
I'd call this guy [defendant] back. He'd called a couple of timesand was irate.” Det. Owenby further testified that when he
returned defendant's call, it was “probably within about four or
five days after I charged him.” Defendant “answered the phone.”
“He wanted to know why I had charged him with failing to change his
address.” “I told him that he had -- I'd received a phone call.”
In response to whether he knew where defendant was at that time,
Det. Owenby answered,
[Defendant] was at his mother's residence.
. . .
I called him there. . . .
. . .
He was -- he was -- actually, he was very nice
to me, polite to me. He wanted to know why I
had charged him, and at that particular time I
found out that he had already had the warrant
served. I didn't know prior to that. He told
me that he had come to register and somebody
told him they would take care of it on that
Sunday.
. . .
[Not knowing who, defendant] said the person
on the phone, on the green phone, which on the
weekends in our -- in the main entrance to the
sheriff's office, when you walk in there's a
green phone you pick up. You get a dispatcher
and they will -- they will help you from
there.
Det. Owenby further stated that sex offender registration is not
available on Sundays, but only during normal business hours. Det.
Owenby testified that he later inquired of the people in his office
as to whether they had advised defendant that they would take care
of it, but was unable to discover anyone who had. Defendant was brought to trial on the subject charge, and his
attorney filed a motion to have defendant examined to determine
whether he had the capacity to proceed, which motion was granted.
In his evaluation report of defendant dated 15 December 1998,
certified forensic screening evaluator Marc Strange (“Mr.
Strange”), stated:
[Defendant] has an extensive history of
inpatient and outpatient psychiatric
treatment. He appears to have been
psychiatrically hospitalized at least 35 times
to date. This included multiple commitments
to Broughton State Hospital and Dorothea Dix
Hospital. His most recent commitment was at
Broughton for approximately 10 days on
December 2, 1998. Historically, [defendant's]
commitments have been the result of an active
psychotic thought disorder, poor medication
compliance, inappropriate and illegal sexual
behavior (primarily exposing his genitals in
public accompanied by loud and sometimes
aggressive behavior), and/or assaultive
behavior. He has been adjudicated to be
legally incompetent, with his mother being
made his guardian, and is a Registered Sex
Offender in Buncombe County. In the past,
[defendant] has routinely refused to comply
with psychotropic medications due to his
stated belief that they are either poisons or
that he does not require them. His compliance
has been notably improved by the use of
neuroleptic injections. During his last
commitment to Broughton, he was removed from
injections and once again placed on oral
medication. [Defendant's] current psychiatric
diagnoses are Schizophrenia, chronic,
undifferentiated; Antisocial Personality
Disorder; and, Alcohol Abuse. . . .
. . .
[Defendant's] comprehensions of his current
legal situation, and of the courtroom process
involving him, appear to be intact. He is
able to clearly describe the current charge
against him (failure to register as a sex
offender), how that charge came about (hemoved and failed to notify authorities within
the legal time limit), and the range of
possible consequences he would face should he
be convicted of that charge. . . .
[Defendant] does demonstrate limited insight
with regard to the extent and significance of
his sexual offenses and consistently minimizes
these events. This would seem consistent with
his level of cognitive impairment and his Axis
I and II characteristics. Although occasional
loose associations of a nondisruptive nature
mark his comments, [defendant] is clearly able
to effectively meet the state's criteria to
demonstrate competency to proceed. . . .
Thus, the trial court allowed the trial to proceed. Defendant was
tried by a jury and found guilty. Finding aggravating factors, the
trial court sentenced defendant to fifteen to eighteen months in
prison.
At trial, defendant preserved six assignments of error, but he
argues only four to this Court, thus we deem the others abandoned.
N.C.R. App. P. 28(b). In his first three assignments of error,
defendant argues that the statute under which he was convicted
(N.C. Gen. Stat. § 14-208.11) is unconstitutional under both the
United States Constitution and the North Carolina Constitution
because: (1) it violates due process requirements by making a sex
offender's failure to notify of change of address a strict
liability felony offense; (2) as applied to defendant, it severely
punishes an incompetent person for failing to take some affirmative
action, without regard to fault or legal excuse; and (3) it
violates the Constitutions' prohibition on ex post facto laws by
increasing the punishment for sex offenders after the commission of
their crimes. Defendant further assigns error to the trial court'sfailure to dismiss the bill of indictment when the indictment
included the term “knowingly” committed, an element of the crime
which was not required of the State to prove. Due to our
disposition of the case, we address only defendant's argument that
the statute is unconstitutional as applied to him.
This is a case of first impression for North Carolina and,
based on our extensive research, it may well be a case of first
impression for the nation. That is, whether a state statute
requiring a convicted sex offender to register with the county
sheriff's department his wholly innocent act of changing addresses,
applies to an individual who has been adjudicated incompetent.
Our Supreme Court has held that:
The authority of this Court to declare an
act of the Legislature unconstitutional arises
from its duty to determine, in accordance with
applicable and valid rules of law, the rights
of litigants in a controversy brought before
it by proper procedure. Consequently, when
asked to determine the constitutionality of a
statute, the Court will do so only to the
extent necessary to determine that
controversy. It will not undertake to pass
upon the validity of the statute as it may be
applied to factual situations materially
different from that before it. . . .
Watch Co. v. Brand Distributors and Watch Co. v. Motor Market, 285
N.C. 467, 472, 206 S.E.2d 141, 145 (1974) (citation omitted)
(emphasis added). Therefore, we hold that as applied to the facts
of this case involving this defendant, an adjudicated incompetent,
N.C. Gen. Stat. § 14-208.11 is unconstitutional because it fails to
provide him with sufficient notice or knowledge to overcome UnitedStates Constitutional Fifth and Fourteenth Amendment due process
requirements.
This Court in In re Lamm, 116 N.C. App. 382, 448 S.E.2d 125
(1994) opined that,
“The Fifth and Fourteenth Amendments to the
United States Constitution, together with the
Law of the Land Clause of Article I, § 19 of
the North Carolina Constitution, provide that
no person shall be deprived of life, liberty
or property without due process of law.”
State v. McCleary, 65 N.C. App. 174, 180, 308
S.E.2d 883, 888 (1983), affirmed, 311 N.C.
397, 316 S.E.2d 870 (1984). Article I, § 19
of the North Carolina Constitution is
synonymous with “due process of law” as that
term is applied under the Fourteenth Amendment
to the federal Constitution. In re Moore, 289
N.C. 95, 221 S.E.2d 307 (1976); McNeill v.
Harnett County, 327 N.C. 552, 398 S.E.2d 475
(1990), and United States Supreme Court
interpretations of the latter, though not
binding, are highly persuasive in construing
the former. Watch Co. v. Brand Distributors,
285 N.C. 467, 206 S.E.2d 141 (1974). However,
in deciding what procedural safeguards are due
under Article I, § 19 of the North Carolina
Constitution, the North Carolina Supreme Court
has employed a somewhat different method of
decision than that employed by the United
States Supreme Court for deciding similar
questions under the due process clause of the
federal constitution. Henry v. Edmisten, 315
N.C. 474, 340 S.E.2d 720 (1986). Accordingly
we must examine the procedures prescribed by
the State [statute] at issue, and particularly
as applied to respondent in this case, to
determine whether they comport with the
requirements of due process under both
constitutions.
. . .
Due process of law formulates a flexible
concept, to insure fundamental fairness in
judicial or administrative proceedings which
may adversely affect the protected rights of
an individual. Due process means simply a
procedure which is fair and does not mandate asingle, required set of procedures for all
occasions; it is necessary to consider the
specific factual context . . . involved. In
resolving any claimed violation of procedural
due process, a balance must be struck between
the respective interests of the individual and
the governmental entity seeking a
remedy. . . . At a minimum, due process
requires adequate notice of the charges and a
fair opportunity to meet them, and the
particulars of notice and hearing must be
tailored to the capacities and circumstances
of those who are to be heard.
Id. at 384-86, 448 S.E.2d at 128-29 (emphasis added) (citations
omitted).
In the present case, the North Carolina statute at issue
states in pertinent part:
(a) A person required . . . to register
who does any of the following is guilty of a
Class F felony:
(1) Fails to register.
(2) Fails to notify the last registering
sheriff of a change of address.
(3) Fails to return a verification
notice as required under G.S. 14-
208.9A.
. . .
(a1) If a person commits a violation of
subsection (a) of this section, the probation
officer, parole officer, or any other law
enforcement officer who is aware of the
violation shall immediately arrest the person
in accordance with G.S. 15A-401, or seek an
order for the person's arrest in accordance
with G.S. 15A-305.
(b) Before a person convicted of a
violation of this Article is due to be
released from a penal institution, an official
of the penal institution shall conduct the
prerelease notification procedures specified
under G.S. 14-208.8(a)(2) and (3). If upon aconviction for a violation of this Article, no
active term of imprisonment is imposed, the
court pronouncing sentence shall, at the time
of sentencing, conduct the notification
procedures specified under G.S. 14-208.8(a)(2)
and (3).
N.C. Gen. Stat. § 14-208.11 (1999).
We begin by noting that the statute, as it is written, states
that an individual who DOES a thing, is in violation of the
statute. However in actuality, violation of the statute is in the
passive act of the individual's NOT doing the thing -- specifically
at issue here, defendant's not registering his change of address.
Furthermore, we note that the statute has no requirement of
knowledge or intent, so as to require that the State prove either
defendant knew he was in violation of or intended to violate the
statute when he failed to register his change of address. However,
in line with due process notice requirements, our Legislature has
written the statute such that it mandates a convicted sex offender
be notified of the registration requirements. N.C. Gen. Stat. §
14-208.11(b). Under ordinary circumstances such a provision would
work to remove the statute from due process notice attacks. Thus
the State argues that in having registered once before and having
signed and received notification of the on-going requirement to
register any changes of address, “defendant was affirmatively put
on notice yet again by Detective Timothy Israel . . . .” We
disagree.
Our General Assembly has clearly set out the legal meaning of
an incompetent as one who lacks sufficient capacity to manage
[his/her] own affairs or to make or
communicate important decisions concerning
[his/her] person, family, or property whether
the lack of capacity is due to mental illness,
mental retardation, epilepsy, cerebral palsy,
autism, inebriety, senility, disease, injury,
or similar cause or condition.
N.C. Gen. Stat. § 35A-1101(7) (1999) (emphasis added).
Furthermore, in an effort to protect these individuals, our laws
authorize the judiciary to appoint guardians to assist these
individuals in conducting their daily affairs. “The essential
purpose of guardianship for an incompetent person is to replace the
individual's authority to make decisions with the authority of a
guardian when the individual does not have adequate capacity to
make such decisions.” N.C. Gen. Stat. § 35A-1201(a)(3) (1999).
Thus, we know that in order for defendant to have been adjudicated
incompetent by a court of this state and his mother appointed his
guardian, the court must have found that defendant either (1)
lacked sufficient capacity to manage his own affairs; or (2)
lacked sufficient capacity to make or communicate important
decisions concerning his person. Id. The record does not indicate
the court's findings with regard to the adjudication; however, that
is of no importance since the State does not (and could not at this
time) argue that the adjudication was improper.
It is true -- the record before us revealing -- that based on
Det. Israel's explaining to defendant the sex offender's
registration requirements, defendant was provided with “actual
knowledge” enough to satisfy due process requirements for any
reasonable and prudent man. However, “defendant has been legallydetermined to be incapable of managing his own affairs.” In lig
ht
of defendant's incompetency, he is not a reasonable and prudent
man. His mother testified that defendant was of average mental
capacity until the age of seventeen when he suffered injuries
sustained in a moped accident and, since that time, he has been
unable to manage his own personal affairs. Consequently, defendant
was adjudicated incompetent in 1989, pursuant to N.C. Gen. Stat. §
35A, and has lived the last eleven years of his life in and out of
state mental hospitals, having been hospitalized “at least 35
times” over the course of his lifetime. Therefore, because
defendant was adjudicated incompetent, we believe that what
constituted “actual notice” to a reasonable and prudent man, was
not sufficient notice to this defendant.
Pursuant to North Carolina statutory and case law which govern
the affairs of adjudicated incompetents, our courts have long held
that it is impermissible (if not impossible) to solely give notice
to the actual incompetent person himself, expecting then to enforce
rights against him:
If any person, to whom notice must be
given . . . is a minor or is incompetent, then
the notice shall be given to his duly
appointed guardian or other duly appointed
representative . . . .
N.C. Gen. Stat. § 35A-1353 (1999). Furthermore:
Once an adjudication of incompetency is
made, [and] a guardian is appointed, [] the
incompetent becomes a ward of the guardian.
The authority of the guardian then replaces
the authority of the ward to manage the ward's
affairs. Therefore, upon an adjudication of
incompetence, the ward loses h[is] legal
rights, including the right to make contracts,to control and sell property and to
vote. . . . [T]he legal ability to form
contracts [even] encompasses basic rights
including the ability to purchase groceries or
retail items . . . .
Laura M. Wolfe, Comment, A Clarification of the Standard of Mental
Capacity in North Carolina for Legal Transactions of the Elderly,
32 Wake Forest L. Rev. 563, 564 (1997) (footnotes omitted citing
N.C. Gen. Stat. §§ 35A-1120, 35A-1201(a)(3), 35A-1241 and 35A-
1251). Thus, we find that N.C. Gen. Stat. § 14-208.11 does not
provide adequate notice for an incompetent sex offender to comply
with the statute's requirements. Due process requires not just the
mechanical act of notifying a defendant or the automatic assumption
that the notice is good, but in fact, we believe due process
requires that notice be synonymous with the ability to comply.
We find Lambert v. California, 355 U.S. 225, 2 L. Ed. 2d 228
(1957), dispositive. In Lambert, the plaintiff was a convicted
felon who as such, under the California Municipal Code, was
required to register with the city if she remained (or intended to
remain) in Los Angeles for more than five days. After living in
Los Angeles for more than seven years, plaintiff was arrested on
suspicion of another offense and then charged with violation of the
registration law. On appeal to the United States Supreme Court on
the grounds that the Code was unconstitutional, the Court opined:
The question is whether a registration act of
this character violates due process where it
is applied to a person who has no actual
knowledge of his duty to register, and where
no showing is made of the probability of such
knowledge.
[We recognize that] conduct alone without
regard to the intent of the doer is often
sufficient. There is wide latitude in the
lawmakers to declare an offense and to exclude
elements of knowledge and diligence [intent]
from its definition. But we deal here with
conduct that is wholly passive -- mere failure
to register. It is unlike the commission of
acts, or the failure to act under
circumstances that should alert the doer to
the consequences of his deed. [Nevertheless,]
[t]he rule that “ignorance of the law will not
excuse” (Shevlin-Carpenter Co. v. Minnesota,
supra, (218 U.S. 68)) is deep in our law, as
is the principle that of all the powers of the
local government, the police power is “one of
the least limitable.” District of Columbia v.
Brooke, 214 U.S. 138, 149, 53 L. Ed. 941, 945,
29 S.Ct. 560. On the other hand, due process
places some limits on its exercise. Engrained
[sic] in our concept of due process is the
requirement of notice. Notice is sometimes
essential so that the citizen has the chance
to defend charges. Notice is required before
property interests are disturbed, before
assessments are made, before penalties are
assessed. Notice is required in a myriad of
situations where a penalty or forfeiture might
be suffered for mere failure to act. . . .
[T]he principle is equally appropriate where a
person, wholly passive and unaware of any
wrongdoing, is brought to the bar of justice
for condemnation in a criminal case.
Registration laws are common and their range
is wide. . . . But the present ordinance is
entirely different. Violation of its
provisions is unaccompanied by any activity
whatever, mere presence in the city being the
test. Moreover, circumstances which might
move one to inquire as to the necessity of
registration are completely lacking. . . . We
believe that actual knowledge of the duty to
register or proof of the probability of such
knowledge and subsequent failure to comply are
necessary before a conviction under the
ordinance can stand. As Holmes wrote in The
Common Law, “A law which punished conduct
which would not be blameworthy in the average
member of the community would be too severe
for that community to bear.” Id. at 50. Its
severity lies in the absence of an opportunityeither to avoid the consequences of the law or
to defend any prosecution brought under it.
Where a person did not know of the duty to
register and where there was no proof of the
probability of such knowledge, he may not be
convicted consistently with due process. Were
it otherwise, the evil would be as great as it
is when the law is written in print too fine
to read or in a language foreign to the
community.
Id. at 227-30, 2 L. Ed. 2d at 231-32 (emphasis added) (citations
omitted). Thus, although ignorance of the law is no excuse, and
the statute at issue does not require the State to prove intent,
due process requires that defendant have knowledge, actual or
constructive, of the statutory requirements before he can be
charged with its violation. Id.
We recognize that Lambert has been very narrowly construed and
that few cases since have been able to successfully argue its
application to new facts before the Court. However, we note that
each time a court has refused to apply Lambert, the defendant at
hand either knew or should have known of the possible violation.
For example, where the defendant in U.S. v. Lamb, 945 F.Supp. 441
(N.D.N.Y. 1996), was charged with the distribution of child
pornography, the court opined
the possession and distribution of child
pornography is an activity which the average
person would think unlawful. Moreover, the
conduct defendant is charged with is not
wholly passive, but rather involves
transmission over the computer and possible
solicitation of downloads from like-minded
individuals. . . .
Id. at 454. Similarly, in U.S. v. Meade, 175 F.3d 215 (1st Cir.
1999), defendant Meade argued that although he had been chargedwith stalking his wife, his possession of a handgun was wholly
innocent. Disagreeing, the court opined:
Meade nevertheless tries to bring his
case within the Lambert exception by arguing
that firearms possession is an act
sufficiently innocent that no one could be
expected to know that he would violate the law
merely by possessing a gun. As Staples v.
United States, 511 U.S. 600, 610-12, 114 S.Ct.
1793, 128 L. Ed. 2d 608 (1994), makes clear,
firearms possession, without more, is not a
kind of activity comparable to possession of
hand grenades, see Freed, 401 U.S. at 609, 91
S.Ct. 1112, narcotics, see United States v.
Balint, 258 U.S. 250, 253-54, 42 S.Ct. 301, 66
L. Ed. 604 (1922), or child pornography, see
United States v. Robinson, 137 F.3d 652, 654
(1st Cir. 1998). But possession of firearms
by persons laboring under the yoke of
anti-harassment or anti-stalking restraining
orders is a horse of a different hue. The
dangerous propensities of persons with a
history of domestic abuse are no secret, and
the possibility of tragic encounters has been
too often realized. We think it follows that
a person who is subject to such an order would
not be sanguine about the legal consequences
of possessing a firearm, let alone of being
apprehended with a handgun in the immediate
vicinity of his spouse. . . .
Id. at 226. Likewise, the 4th Circuit District Court rejected
defendant Bostic's argument that Lambert applied, stating:
By engaging in abusive conduct toward [his
wife and child, the defendant] removed himself
from the class of ordinary citizens. . . .
Like a felon, a person in [defendant's]
position cannot reasonably expect to be free
from regulation when possessing a firearm.
U.S. v. Bostic, 168 F.3d 718, 722 (4th Cir. 1999).
Nonetheless, it is the State's contention before this Court
that defendant was competent enough to register his change of
address himself. In support of its argument, the State cites thefact that “ [a]fter leaving the Sheriff's Office on Sunday, October
4, 1998, the defendant's mother gave him money to catch a bus to
come back to the Sheriff's Office to change his address,” an
indication that defendant was capable of registering himself. The
State further argues that although defendant was adjudicated
incompetent years ago, the trial court found defendant competent to
stand trial for the charge of violating the statute's change of
address requirement and properly “instructed the jury that
[defendant's being adjudicated] incompeten[t] . . . does not
absolve the defendant from criminal liability.” We find the
State's rationale unpersuasive.
To start, the State's own witness, Det. Israel admitted that
when defendant showed up at the sheriff's office to register the
first time (May 1998), defendant had not driven himself, nor had he
come alone. Additionally, when defendant attempted to register on
Sunday, 4 October 1998 his mother drove him and his brother
accompanied him inside the sheriff's office. Furthermore, when
defendant's mother gave him money to catch a bus to register,
defendant never arrived. We do not find these facts persuasive to
show that defendant was capable of registering himself. On the
contrary, we deduce from these incidents that defendant was only
able to comply with registering when he was accompanied by another
adult. Furthermore, we note that in finding defendant competent to
stand trial, the trial court was only finding that defendant -- at
the time of trial -- was competent to assist in his defense. 21
Am. Jur. 2d Criminal Law § 96 (1981). This is NOT the same as afinding of whether defendant knew, understood and was ab
le to
comply with the requirement that he register his change of address
during the ten days in which he had to register to avoid arrest.
Thus, it is irrelevant as to whether defendant had proper notice.
Next, we address the State's contention that because the trial
court found defendant competent to stand trial, whatever the jury's
verdict, defendant received due process. We again, disagree. It
is true that under most circumstances, a criminal defendant is not
absolved from criminal liability just because he has been
adjudicated incompetent. However, a test for determining
defendant's competency to stand trial (which the trial court
conducted) is substantially different from one which would
determine whether defendant was competent to comply with the
requirements of registration at the time he must necessarily have
registered to avoid violating the subject statute. 21 Am. Jur. 2d
Criminal Law § 96 (1981). The latter was NOT a test conducted by
the trial court. (We note that up until now, this type of test
would fall in line with an insanity defense for criminal acts
committed.) However, taking our lead from Lambert, supra, we
believe that due to the nature of the subject statute's requirement
and the wholly innocent act (an omission) through which the statute
may so easily be violated, proof of an adjudicated incompetent
defendant's ability to comply must necessarily be an element of the
State's prima facie case to satisfy due process requirements.
Thus, N.C. Gen. Stat. § 14-208.11 is unconstitutional as applied
to him. Defendant at bar received a sentence of fifteen to eighteen
months in prison for failing to register his change of address from
a mental institution to his mother's home (with whom he had lived
all of his life). From the time the defendant moved back home, the
sheriff's office not only knew where to find the defendant, its
officers served the warrant on defendant at his mother's home and
later telephoned defendant at his mother's home before they
arrested him there. Granted, our statutes do not require the
sheriff to contact a sex offender and advise them to come in and
register before the ten-day period has run. However, in the case
of this incompetent defendant, the sheriff could easily have
avoided the extreme time and cost of litigation to the State had he
seen fit to advise this defendant's mother that defendant had yet
to register. (We note that even in cases involving an
incompetent's property, our case law has long required notice be
given to the guardian of the incompetent.) However, we do not
suggest that had the State contacted defendant's mother, notice to
defendant would then have been perfected. On the contrary, as
written, our current sex offender registration laws do not
adequately address the situation at hand, neither do they
efficiently provide a way for the State to enforce the registration
requirements against an adjudicated incompetent. Our General
Assembly must revisit this issue to adequately provide the State a
way to enforce these registration laws while protecting the rights
of adjudicated incompetents in North Carolina. Nevertheless, we hold that as applied to an adjudicated
incompetent defendant, N.C. Gen. Stat. § 14-208.11 is
unconstitutional because it fails to afford him sufficient notice
as required by due process under the Fifth and Fourteenth
Amendments to the United States Constitution. Finding it so, we
need not address the statute's unconstitutionality under North
Carolina's Constitution. Therefore, the trial court's judgment is
hereby
Reversed.
Judge GREENE concurs.
Judge HORTON concurs in the result.
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