1. Crimes, Other; Sexual Offenses_submitting information under
false pretenses to the sex offender registry_sufficiency of
evidence
The trial court did not err by denying defendant's motion to
dismiss a charge of submitting information under false pretenses
to the sex offender registry where there was evidence that
defendant knowingly and intentionally gave an address he knew to
be false when he registered the address in Cabarrus County where
he had lived with his wife, who was seeking a divorce; he resided
in Mecklenburg County with his sister; his personal belongings
were at the Mecklenburg County address; when challenged by his
wife about registering a false address, defendant replied, “Well,
they don't know that”; defendant did not have a key to his wife's
house and forcibly entered; and, when arrested for breaking and
entering, defendant listed his sister's house as his address.
2. Appeal and Error_preservation of issues_failure to
object_plain error not asserted
Defendant waived his right to appellate review of the
instructions given by the trial court where defendant did not
object at trial and did not assert plain error in an assignment
of error.
3. Evidence_fingerprint evidence_foundation
The trial court did not abuse its discretion in a
prosecution for submitting information under false pretenses to
the sex offender registry by allowing a detective's testimony
concerning fingerprint analysis. Fingerprinting is an
established and scientifically reliable method of identification
and the witness was recognized as an expert; moreover, this
fingerprint identification served only to buttress testimony that
a detective had compared the names and aliases used by defendant,
his date of birth, tattoos, and social security number to
determine that defendant was the person convicted of the
registered offense.
4. Appeal and Error_preservation of issues_constitutionality of
act_not brought before trial court
An argument concerning the constitutionality of the N.C. Sex
Offender and Public Protection Registration Program was not
brought before the trial court and was not addressed on appeal.
Attorney General Roy Cooper, by Assistant Attorney General
John J. Aldridge, III, for the State.
William D. Arrowood for defendant appellant.
TIMMONS-GOODSON, Judge.
On 22 March 2000, a jury found Tommie Parks ("defendant")
guilty of submitting information under false pretenses to the North
Carolina Sex Offender and Public Protection Registration Program.
The trial court subsequently sentenced defendant to a minimum term
of twenty-seven (27) months' and a maximum term of thirty-three
(33) months' imprisonment. On 29 June 2000, this Court allowed
defendant's petition for writ of certiorari in order to review
defendant's trial and resulting judgment.
The evidence before the trial court tended to show the
following: On 25 January 1991, defendant pled guilty to two counts
of attempted first-degree sexual offense and two counts of taking
indecent liberties with children and was sentenced to a term of
eighteen years' imprisonment. On 1 January 1996, the North
Carolina Sex Offender and Public Protection Registration Program
("the Registration Program") went into effect. See 1995 N.C. Sess.
Laws ch. 545, § 3. The Registration Program requires, inter alia,
persons convicted of certain sexual offenses and offenses against
minors "to maintain registration with the sheriff of the county
where the person resides." N.C. Gen. Stat. § 14-208.7(a) (1999).
Reportable convictions under the Registration Program includefirst-degree sexual offenses and taking indecent liberties with
children. See N.C. Gen. Stat. § 14-208.6(4)-(5) (1999).
Accordingly, when the Department of Correction released defendant
on parole in 1997, he registered as a sexual offender with the
Sheriff's Department in Cabarrus County. At that time, defendant
registered his address as 2611 Heidelberg Drive, Concord, North
Carolina. Defendant resided at the Concord address with his wife,
Kay Parks ("Parks"), from his initial release in 1997 until 23
August 1998, at which time defendant was arrested and imprisoned
for violating his parole. He subsequently served a fifteen-month
sentence.
While defendant was in prison, Parks informed him by letter
that she was obtaining a divorce, and that her home in Concord
would no longer be his residence. Parks then installed new locks
on the doors to her house and transported defendant's personal
property to his sister's home in Mecklenburg County, North
Carolina. Parks did not visit defendant while he was incarcerated.
Upon his release from prison on 30 October 1999, defendant returned
to the Cabarrus County Sheriff's Department to update his address
on the sexual offender registry. Although defendant was living at
his sister's home in Mecklenburg County at the time, defendant
registered his address as 2611 Heidelberg Drive, Concord, North
Carolina.
Shortly thereafter, defendant contacted Parks by telephone.
During one of their phone conversations, defendant informed Parks
that he had registered in Cabarrus County. Parks stated, "But
don't you mean Mecklenburg County . . . you don't live in CabarrusCounty." Defendant responded, "Well, they don't know that.&quo
t; On 9
November 1999, defendant went to 2311 Heidelberg Drive in order to
visit Parks, but she locked the front door and refused to allow
defendant to enter her home. Defendant then kicked the door open,
and Parks called for 911 emergency assistance. Responding law
enforcement officers soon arrived and arrested defendant. When
questioned about the incident, defendant explained that, "I and my
wife haven't been together because I pulled time. I went to her
house . . . and when she saw me, she said, 'Oh God, what do you
want?' [and] . . . 'Go away,' and I pushed the door open." While
in custody, defendant gave his address as that of his sister's home
in Mecklenburg County.
From his conviction for submitting information under false
pretenses to the sex offender registry and resulting sentence,
defendant now appeals.
_____________________________________________________
Defendant contends the trial court erred by (1) denying
defendant's motion to dismiss; (2) failing to properly instruct the
jury; and (3) allowing an expert witness to testify as to
identification of fingerprints. Defendant also argues that North
Carolina's Sex Offender and Public Protection Registration Program
is unconstitutional. For the reasons stated herein, we find no
merit to defendant's arguments and no error by the trial court.
[1]Defendant argues the trial court erred in denying his
motion to dismiss. Defendant contends there was no evidence of any
intent to deceive on his part when he registered his address as
2311 Heidelberg Drive. We disagree. Upon a defendant's motion to dismiss, the trial court must
consider the evidence in the light most favorable to the State,
allowing every reasonable inference to be drawn therefrom. State
v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). A motion
to dismiss is proper when the State fails to present substantial
evidence of each element of the crime charged. State v. McDowell,
329 N.C. 363, 389, 407 S.E.2d 200, 214 (1991). Substantial
evidence is evidence that is "existing and real, not just seeming
or imaginary." State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114,
117 (1980).
Defendant in the instant case was charged with submitting
information under false pretenses to the Registration Program.
Under section 14-208.11(a) of the North Carolina General Statutes,
a person is guilty of submitting information under false pretenses
if the person (1) stands convicted of a sexual offense requiring
him to register as a sexual offender and (2) submits information
under false pretenses to the sexual offender registry. See N.C.
Gen. Stat. § 14-208.11(a)(4) (1999). False pretense occurs when
one makes an untrue representation to another that is calculated
and intended to deceive. See, e.g., State v. Murphy, 280 N.C. 1,
5-7, 184 S.E.2d 845, 847-48 (1971). "Intent is a mental attitude
which seldom can be proved by direct evidence, but must ordinarily
be proved by circumstances from which it can be inferred." State
v. Kendrick, 9 N.C. App. 688, 691, 177 S.E.2d 345, 347 (1970).
In the light most favorable to the State, there was adequate
evidence in the record from which a reasonable jury could conclude
that defendant knowingly and intentionally gave an address he knewto be false when he registered his address as 2311 Heidelberg Drive
with the sexual offender registry at the Cabarrus County Sheriff's
Department. Parks testified that she informed defendant that she
was pursuing a divorce, and that he would have to find another
place at which to live. After his release from prison on 30
October 1999, defendant resided in Mecklenburg County with his
sister, at whose home defendant's personal belongings were located.
When Parks specifically challenged defendant's actions in
registering an address at which he did not reside, defendant
replied, "Well, they don't know that." Defendant forcibly entered
Park's residence, as he did not have a key to her home. Upon his
arrest for breaking and entering, defendant gave his address as
that of his sister's and acknowledged that the house at 2311
Heidelberg Drive was his wife's residence. Based on the above-
stated facts, the trial court did not err in denying defendant's
motion to dismiss. We therefore overrule defendant's first
assignment of error.
[2]By his second assignment of error, defendant argues the
trial court erred by inadequately instructing the jury on the
offense of submitting false information to the sexual offender
registry. When defendant's case was at trial, the pattern jury
instructions for a violation of section 14-208.11 of the North
Carolina General Statutes did not exist. The trial court therefore
asked the State and defendant for suggestions on appropriate jury
instructions. Defendant submitted no proposals, nor did he object
to the instructions as given to the jury. Failure to properly
object subjects an alleged error to review only on the grounds ofplain error. See N.C.R. App. P. 10(c)(4) (2001); State v. Fenne
ll,
307 N.C. 258, 263, 297 S.E.2d 393, 396-97 (1982). Moreover, if a
defendant fails to assert plain error in an assignment of error or
fails to specifically and distinctly argue in his brief that the
trial court's instructions amounted to plain error, this Court will
not conduct plain error review. State v. Nobles, 350 N.C. 483,
514-15, 515 S.E.2d 885, 904 (1999); State v. Truesdale, 340 N.C.
229, 232-33, 456 S.E.2d 299, 301 (1995). Defendant did not assign
plain error to the trial court's instructions, nor did he argue
such in his brief to this Court. Thus, defendant has waived his
right to appellate review regarding the instructions given by the
trial court. We therefore do not address defendant's second
assignment of error.
[3]By his third assignment of error, defendant argues the
trial court erred in permitting expert testimony by Detective Ron
Beaver concerning a fingerprint analysis Detective Beaver conducted
in connection with defendant's case. Defendant asserts that,
because there was no proper foundation for the admission of
Detective Beaver's testimony, such evidence was inadmissible.
During the course of trial, defendant raised the issue as to
whether he was the same person as the "Tommie Everette Parks" shown
on the Judgment and Commitment in the 15 January 1991 conviction
and the same as the "Tommie Edward Parks" whose name appeared on
the 9 November 1999 arrest report. As a result, Detective Beaver
was called to the stand and permitted to testify as an expert on
fingerprint identification. Detective Beaver testified that
defendant's fingerprints taken in 1999 were identical to thefingerprints of the "Tommie Parks" convicted in 1991 for sexual
offense charges. Defendant now argues that the State presented no
evidence concerning the reliability of the method Detective Beaver
used to compare the fingerprints, and that the trial court took no
judicial notice of the reliability of such testing. As such,
defendant argues the State did not establish a proper foundation
for the testimony given by Detective Beavers. We disagree.
Our Supreme Court in State v. Rogers, 233 N.C. 390, 398, 64
S.E.2d 572, 578 (1951), recognized that fingerprinting is an
established and scientifically reliable method of identification.
The trial court recognized Detective Beavers as an expert in such
identification, and we discern no abuse of discretion by the court
in qualifying him as such. See State v. Bullard, 312 N.C. 129,
140, 322 S.E.2d 370, 376 (1984) (noting that the trial judge is
afforded wide latitude of discretion in admitting expert
testimony). Moreover, Detective Beaver's testimony concerning the
fingerprint identification only served to buttress his confirmation
that defendant was the same person in both the 1991 and 1999
arrests. Specifically, Detective Beavers testified that he
compared the names and aliases used by defendant, his date of
birth, tatoos, and his social security number to determine that
defendant was the same individual convicted in 1991 of the
registered offenses. We therefore overrule defendant's third
assignment of error.
[4]Finally, defendant argues that North Carolina's Sex
Offender and Public Protection Registration Program violates the
ex post facto provisions of the United States and North CarolinaConstitutions. Defendant did not raise this argument before
the
trial court, however, and therefore this issue is not properly
before this Court. See N.C.R. App. P. 10(b)(1) (2001); State v.
Benson, 323 N.C. 318, 321-22, 372 S.E.2d 517, 518-19 (1988).
Accordingly, we do not address defendant's final assignment of
error.
In summary, we hold defendant received a fair trial, free from
prejudicial error.
No error.
Judges McGEE and JOHN concur.
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