STATE OF NORTH CAROLINA
v. Harnett County
No. 02 CRS 57048
DAVID SCOTT ARNOLD
Attorney General Roy Cooper, by Assistant Attorney General
Lorrin Freeman, for the State.
Charns & Charns, by D. Tucker Charns, for defendant-appellant.
STEELMAN, Judge.
On 10 March 2003, defendant, David Scott Arnold, was indicted
for failing to register as a sex offender pursuant to N.C. Gen.
Stat. § 14-208.9 (2003). The case was tried at the 9 June 2003
Session of Harnett County Criminal Superior Court. The evidence
presented at trial tended to show the following: On 21 September
1993, defendant pled no contest to the charge of taking indecent
liberties with a minor. Defendant was released from prison on 22
February 1996 and registered as a sex offender on 4 March 1996.
As of 4 March 2002, defendant was registered in Onslow County.
On 29 October 2002, defendant's daughter was enrolled at Angier
Elementary School in Harnett County. The enrollment form listeddefendant as her father and indicated a Harnett County address. On
5 November 2002, Detective Sabrina Currin of the Harnett County
Sheriff's Department received an anonymous call stating that
defendant was living in Harnett County. On 8 November 2002,
Detective Currin contacted the Onslow County Sheriff's Department
to verify if defendant was living in Onslow County. Detective
Raeford Padgett went to defendant's last registered address, but
found nobody at home. Detective Padgett left a note asking
defendant to contact him, but received no response. Defendant was
arrested in Harnett County on 18 November 2002. Upon his arrest,
defendant indicated he lived in Angier, North Carolina, which is in
Harnett County. Following his arrest, defendant registered in
Harnett County.
The jury found defendant guilty of failure to register as a
sex offender. The trial court sentenced defendant to an active
sentence within the presumptive range of twenty-seven to thirty-
three months imprisonment. Defendant appeals.
In defendant's first assignment of error, he contends the
trial court erred by allowing into evidence prior charges against
him for failing to register as a sex offender. We disagree.
Defendant was convicted in 1999 for failure to register as a
sex offender, and a second charge was dismissed after defendant
properly registered. Defendant contends these charges were not
related to his present offense, were not proper court documents,
and should not have been admitted because he did not testify and
was thus not subject to impeachment. We disagree. Defendant relies on the case of State v. Wilkerson in support
of his contention that the trial court erred. 356 N.C. 418, 571
S.E.2d 583 (2002) (reversing this Court's decision and adopting
Judge Wynn's dissent in State v. Wilkerson, 148 N.C. App. 310, 559
S.E.2d 5 (2002)). In Wilkerson, our Supreme Court held the bare
fact of a defendant's prior convictions is not admissible under
Rule 404(b) of the Rules of Evidence without some proffer of
evidence concerning the facts and circumstances underlying the
prior convictions. Id. Defendant's reliance on Wilkerson is
misplaced. In Wilkerson, it was the deputy clerk who testified
regarding the bare facts of defendant's prior convictions and who
was unable to offer testimony about the facts underlying those
convictions. However, in this case, it was the arresting officer
who testified regarding defendant's prior arrests and conviction
for failure to register and provided the court with the facts and
circumstances underlying both arrests.
Rule 404(b) of the North Carolina Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2004). Our Court has stated:
This rule is 'a clear general rule of
inclusion of relevant evidence of other
crimes, wrongs or acts by a defendant,
subject to but one exception requiring its
exclusion if its only probative value is to
show that the defendant has the propensity or
disposition to commit an offense of the natureof the crime charged.'
State v. Washington, 141 N.C. App. 354, 366, 540 S.E.2d 388, 397
(2000)(quoting State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990)), disc. review denied, 353 N.C. 396, 547 S.E.2d 427
(2001). Here, the evidence of defendant's prior conviction and
prior charge for failing to register as a sex offender was relevant
to show the defendant's knowledge and absence of mistake.
Specifically, the evidence tended to show defendant knew of the law
requiring that he register every time he relocated, knew how to
properly register, and thus the absence of mistake. The trial
judge gave the limiting instruction to the jury contained in
instruction 104.15 of the North Carolina Pattern Jury Instructions.
The judge instructed the jury “this evidence was received solely
for the purpose of showing that the defendant had knowledge. . . .
and also to show the absence of mistake on his part. So if you
believe this evidence, you may consider it but only for the limited
purpose for which it was received.” The trial court did not abuse
its discretion by admitting this evidence.
We decline to review defendant's argument that the computer
“print-outs” should not have been admitted because they were not
proper court documents and not certified. As we stated above, the
officer who arrested defendant on both of the previous occasions
when defendant failed to register, testified regarding both of
defendant's prior arrests. At no time during the questioning of
Detective Currin did defendant object to this line of questioning
or the introduction of the printouts into evidence. In order topreserve a question for appellate review, Rule 10(b)(1) of the
Rules of Appellate Procedure requires that a complaining party
object at trial, stating the specific grounds for the ruling that
party desires. Failure to raise such objection at trial limits our
review to plain error. State v. Turner, 98 N.C. App. 442, 447, 391
S.E.2d 524, 527 (1990); N.C. R. App. P. 10(c)(4). However, the
plain error rule does not render the requirement of N.C.R. App. P.
10(a), limiting the scope of review to those assignments of error
set out in the record on appeal, inapplicable. State v. Lovett,
119 N.C. App. 689, 693-94, 460 S.E.2d 177, 181 (1995). Where a
defendant fails to assert plain error in an assignment of error in
the record on appeal, this Court will not conduct plain error
review. Id. at 694, 460 S.E.2d at 181. Our review of the record
indicates defendant did not allege plain error in his assignment of
error as to this issue. Defendant further contends the admission
of these printouts violated his rights under the United States
Constitution and the constitution of the State of North Carolina.
Constitutional issues not raised in the trial court will not be
reviewed on appeal. State v. Cooke, 306 N.C. 132, 137, 291 S.E.2d
618, 621 (1982).
In defendant's third assignment of error he contends the
trial court erred by allowing the State to introduce school records
of his daughter under the exception for business records.
Defendant did not object at trial to the admission of the school
records. See N.C. R. App. P. 10(b)(1). Thus, our review is
limited to plain error. Lovett, 119 N.C. App. at 693-94, 460S.E.2d at 181. Defendant also failed to assert plain error in an
assignment of error in the record on appeal, therefore we will not
consider it now. Id. at 694, 460 S.E.2d at 181. What defendant
does assert in his assignment of error is that the admission of the
school record violated his state and federal constitutional rights.
As stated above, constitutional issues not raised in the trial
court will not be reviewed on appeal. Cooke, 306 N.C. at 137, 291
S.E.2d at 621.
Even assuming arguendo that the court erred in admitting the
school record, in light of the overwhelming evidence against
defendant, the admission would not rise to the level of prejudicial
error requiring a new trial. This assignment of error is without
merit.
In defendant's fifth assignment of error he contends the trial
court erred in denying his motion to dismiss at the close of the
State's evidence. Defendant asserts that the State failed to
present any competent evidence demonstrating he failed to register
as a sex offender within the time limits prescribed by statute. We
disagree.
After careful review of the record, briefs and contentions of
the parties, we find no error. To survive a motion to dismiss, the
State must present substantial evidence of each essential element
of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483
S.E.2d 432, 434 (1997). “'Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion.'” Id. at 717, 483 S.E.2d at 434 (citations omitted). The evidence must be viewed in the light most favorable to the
State. Id.
In order to convict defendant of failure to register as a sex
offender, the State must prove: “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” within ten
days following the change of address. State v. Harrison, ___ N.C.
App. __, ___, 598 S.E.2d 261, 262 (2004); N.C. Gen. Stat. § 14-
208.9 (a) (2004). In the instant case, defendant was required to
register because he was a resident of North Carolina and had a
“reportable conviction” for taking indecent liberties with a minor.
See N.C. Gen. Stat. § 14-208.6(4) (2004). The evidence tended to
show that Detective Currin received an anonymous call that
defendant was living in Harnett County on 5 November 2002.
Defendant was living in Harnett County. On 8 November 2002, when
Detective Raeford Padgett went to defendant's last registered
address in Onslow County to verify if defendant still lived there,
he found no one at home and received no response to a note left on
the door. Police subsequently arrested defendant in Harnett County
on 18 November 2002. Following his arrest, defendant registered in
Harnett County. After viewing this evidence in the light most
favorable to the State, we find this evidence permits a reasonable
inference that defendant failed to properly register as required by
statute when he moved to Harnett County. Accordingly, the
assignment of error is without merit.
In defendant's sixth assignment of error he contends the trialcourt erred by using an underlying conviction of indecent
liberties, which triggered the requirement that he register as a
sex offender, to calculate his prior record level. We find the
case of State v. Harrison, ___ N.C. App. ___, 598 S.E.2d 261 (2004)
controlling. In Harrison, the defendant argued that his conviction
for second-degree rape was an element of the offense of failing to
register as a sex offender, thus precluding the trial court from
using the conviction in determining his record level during
sentencing. Id. at ___, 598 S.E.2d at 262. This Court rejected
the defendant's argument and held he was not subjected to double
jeopardy by including his conviction of second-degree rape in
calculating his prior record level. Id. We find Harrison to be
indistinguishable from the instant case. Accordingly, we find no
error.
Defendant failed to argue his remaining assignments of error
in his brief; they are therefore deemed abandoned. N.C. R. App.
P. 28(b)(6).
NO ERROR.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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