State v McCullum, (03-1315) 06/15/2004

Appeal by defendant from judgment entered 1 July 2003 by Judge Ronald E. Spivey in the Superior Court in Forsyth County. Heard in the Court of Appeals 7 June 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State.

John T. Hall, for defendant-appellant.

HUDSON, Judge.

    The jury found defendant guilty of failure to register as a sex offender in violation of N.C. Gen. Stat. § 14-208.11 by failing to notify the sheriff of a change in address. The court sentenced him to 21-26 months in prison.
    The State's evidence tends to show that on 20 November 1996, defendant was convicted of taking indecent liberties with a child. At that time, the court sentenced him to an active term of 19-23 months. On 8 October 2001, defendant notified the Forsyth County Sheriff that his address had changed to “1424 Waughtown Street, Apartment B3” in Winston Salem. On 30 October 2001, defendant notified his probation officer that he had moved to “2241 Glenn Avenue” in Winston Salem. On that date, defendant's probationofficer advised him to notify the sheriff of his change of address. On 4 November 2001, 6 November 2001, 13 November 2001, and 20 November 2001, the probation officer urged defendant to report the address change to the sheriff. However, defendant next notified the sheriff of an address change, to “2235 Glenn Avenue,” on 15 January 2002.
    Defendant contends that there is a fatal variance between the indictment and proof because the indictment charged that defendant's last known address was “1424 #B3 Waughtown Street” whereas the probation officer testified that it was “Room A3,” not “B3” as alleged. Defendant also argues that the verdict's failure to specify the addresses constitutes a fatal variance.
    North Carolina law requires state residents who are convicted of certain sex offenses to register with law enforcement agencies within ten days after their release from a penal institution. N.C. Gen. Stat. § 14-208.7(a) (2003). “If a person required to register changes address, the person shall provide written notice of the new address not later than the tenth 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) (1999). A person who is required to register is guilty of a Class F felony if he fails to notify the last registering sheriff of a change of address. N.C. Gen. Stat. § 14-208.11(a). “To meet its burden under § 14-208.11(a)(2), the State must prove that: 1) the defendant is a sex offender who is required to register; and 2) that defendant failed to notify the last registering sheriff of a change of address.” State v. Holmes149 N.C. App. 572, 577, 562 S.E.2d 26, 30 (2002). “Where an indictment alleges the particular place where an act took place, and such allegation is not descriptive of the offense, and is not required to be proved as laid in order to show the court's jurisdiction because such jurisdiction is established by other evidence admissible under other allegations, a variance which does not mislead accused or expose him to double jeopardy is not material.” State v. Martin, 270 N.C. 286, 288, 154 S.E.2d 96, 98 (1967) (quoting 42 C.J.S., Indictments and Informations, § 256 (1991)). Here, whether defendant formerly resided in Room or Apartment A-3 or B3 is inconsequential when the indictment and proof both clearly show that he changed his address from the registered address and failed to report the change. This contention is overruled.
    Defendant next contends the court erred by denying his motion to dismiss for insufficient evidence. He argues the evidence shows that he did register a change of address on 8 October 2001, and is insufficient to show he moved between that date and 15 January 2002, when he next registered a change of address.
    In deciding a motion to dismiss, the trial court determines whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982). The court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v.Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and discrepancies in the evidence are left for resolution by the jury. State v. Powell, 299 N.C. 95, 98-9, 261 S.E.2d 114, 117 (1980).
    Defendant's probation officer testified that defendant told him on 30 October 2001 that he had moved from the Waughtown Street address. The probation officer repeatedly told defendant to notify the sheriff about the change of address. Defendant failed to do so until 15 January 2002, well beyond the ten-day window. Based upon the foregoing evidence, the jury could find defendant committed the offense. Thus, the court committed no error in denying defendant's motion to dismiss.
    Finally, defendant contends the judgment fails “to speak the truth” in that it states defendant pled guilty when actually a jury found him guilty of the offense. Our examination of the judgment form reveals that the typist placed an “x” in the box indicating the defendant pled guilty instead of the box indicating the defendant was found guilty by a jury. We agree that this apparent clerical error should be corrected, and we remand for such correction.
    Remanded for correction of clerical error.
    Judges STEELMAN and THORNBURG concur.
    Report per Rule 30(e).

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