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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. DANNY RAY WISE
Filed: 20 June 2006
1. Evidence_hearsay--Sex Offender Registration documents_records of regularly
A Sex Offender Registration Worksheet and Notice of Pending Registration were records
of regularly conducted activity under N.C.G.S. § 8C-1, Rule 803(6) and were properly admitted
into a prosecution for failing to register as a sex offender. Although police reports are
specifically excluded under Rule 803(8), the inadmissibility of evidence under one hearsay
exception does not necessarily preclude admission under another exception.
2. Criminal Law_judge's discussion with attorneys_case reopened_judicial neutrality
The trial court did not depart from its neutral role in a prosecution for failing to register as
a sex offender when it conducted a discussion with the attorneys away from the jury about
whether the State had to produce evidence of defendant's release date (due to the effective date
of the statute), which the State had not done and was opposed to doing, and then allowed the
State to reopen its case to introduce that missing evidence.
3. Criminal Law_State allowed to reopen case_no abuse of discretion
The trial court did not abuse its discretion by allowing the State in a prosecution for
failing to register as a sex offender to reopen its case and present evidence of defendant's release
date from prison after the parties had rested but before the case was given to the jury.
4. Sexual Offenses_failing to register as sex offender_sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss a charge of failing to
register as a sex offender where defendant contended that there was no evidence that he had
failed to change his registered address within ten days of moving, but the language of his
confession, taken in the light most favorable to the State, was sufficient to permit the inference
that defendant had not lived at the registered address within ten days of his arrest.
Appeal by defendant from judgment entered 12 January 2005 by
Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard
in the Court of Appeals 30 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Ashby T. Ray, for the State.
Mercedes O. Chut for defendant appellant.
Danny Ray Wise (defendant) appeals from a conviction and
judgment for failing to register as a sex offender. We hold that
he received a fair trial, free from prejudicial error.
On 17 August 1995, defendant was convicted in Cabarrus County
Superior Court of indecent liberties with a child. Pursuant to
this conviction, defendant was required upon release from prison to
register as a sex offender with the North Carolina Sex Offender and
Public Protection Registry and to notify the local sheriff of a
change in address within ten days of moving. N.C. Gen. Stat
§ 14-208.11 (2005); N.C. Gen. Stat. § 14-208.7 (2005).
Defendant completed the initial registration requirements with
the Cabarrus County Sheriff's Office in early June of 1998
following his release from prison, and notified the sheriff's
office of a change in address on six separate occasions.
In June 2003, defendant informed the Cabarrus County Sheriff's
Office that his address was 1000 Saint John's Church Road, Concord,
North Carolina. On 1 July 2004, a sheriff's deputy attempted to
locate defendant at this registered address, but he was unable to
do so. The deputy also looked for defendant at 176 Cabarrus Avenue
and at an address on Mooney Road, both in Concord, North Carolina.
The deputy was unable to locate defendant at either residence. The
next day, defendant telephoned the deputy and told him that he knew
the deputy was looking for him because he was hiding in some bushes
at the 176 Cabarrus Avenue address and saw the deputy arrive. Defendant also informed the deputy that he was not living at the
registered address and that he was living at the 176 Cabarrus
Avenue address. He promised to turn himself in once he made some
money. The deputies arrested defendant the next day while he was
Defendant was interviewed following his arrest. He waived his
Miranda rights and made the following statement:
I, Danny Wise, didn't stay with my father
at 1000 Saint John's Church [R]oad Concord, NC
28025 because when [sic] went to live there,
Marge Isenhower was living with my father.
She is a bitch and I didn't want to be around
her and her daughter. They knew what I was
charged with and I thought they might get me
in trouble. Marge took my mother's pictures
off the wall. I didn't like her and could not
live with her. So, then I went to 40406
Millingport Road Stanfield, NC in Stanly
County, NC. I lived with my sister Cheryl
Lefler and "Toppy" Clifford Hyatt. Lately, I
have been living with "Scooter" Donald Roses
at 176 Cabarrus Avenue, Concord, NC 28025.
Today I am changing my registration to this
address. I understand that if I move from
this address I must change it with the sheriff
within 10 days.
A Cabarrus County jury convicted defendant of failing to
register as a sex offender pursuant to N.C. Gen. Stat. § 14-208.11.
The trial court sentenced defendant as an habitual felon to
120-153 months of imprisonment.
Defendant now appeals to this Court.
 In his first argument on appeal, defendant contends thatthe trial court erred by admitting a Notice of Pending
Registration and a Sex Offender Registration Worksheet. Both
documents were used to prove the date of defendant's release from
prison. The trial court admitted these documents pursuant to both
Rule 803(6) and Rule 803(8) of the North Carolina Rules of
Evidence. We conclude that the trial court properly admitted the
documents under Rule 803(6). This conclusion makes it unnecessary
for us to address defendant's argument concerning Rule 803(8).
Rule 803(6) of the North Carolina Rules of Evidence makes
records of regularly conducted activity admissible as a specific
hearsay exception. Records of regularly conducted activity is
defined to include:
A memorandum, report, record, or data
compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or
near the time by, or from information
transmitted by, a person with knowledge, if
kept in the course of a regularly conducted
business activity, and if it was the regular
practice of that business activity to make the
memorandum, report, record, or data
compilation, all as shown by the testimony of
the custodian or other qualified witness,
unless the source of information or the method
or circumstances of preparation indicate lack
of trustworthiness. The term business as
used in this paragraph includes business,
institution, association, profession,
occupation, and calling of every kind, whether
or not conducted for profit.
N.C. Gen. Stat. § 8C-1, Rule 803(6) (2005). This Court has
previously held a police report or record is admissible under Rule
803(6) upon a showing that it is the practice of the police to
generate and keep such a report or record. See, e.g., Nunnery v.Baucom, 135 N.C. App. 556, 565, 521 S.E.2d 479, 485 (1999); Wentz
v. Unifi, Inc., 89 N.C. App. 33, 39, 365 S.E.2d 198, 201 (1988).
In the instant case, the trial court admitted two different
documents. The first was a Notice of Pending Registration, which
is a form that notifies local law enforcement officers of the date
of release for a sex offender planning to live in their county and
indicates that the offender is expected to register his new address
with that agency within ten days. Deputy Burgess offered the
following testimony concerning the Notice of Pending Registration
the Cabarrus County Sheriff's Office received for defendant:
[PROSECUTOR]: [Deputy] Burgess, first of all,
let me ask you, are you currently in your
activities with the sheriff's department
considered the records custodian for
[defendant]'s file as it pertains to his
[DEPUTY BURGESS]: Yes, I am.
. . . .
[PROSECUTOR]: Now, let's go back to June of
1998. If a person is . . . incarcerated for a
sex offense, such that it would otherwise be a
reportable conviction, is a sheriff's
department notified as to when they are being
[DEPUTY BURGESS]: Yes, they are.
. . . .
[PROSECUTOR]: How does that occur?
[DEPUTY BURGESS]: When a defendant is to be
released from the Department of Correction,
the Department of Correction issues a digital
criminal information [DCI] system message to
the county in which the sex offender is going
[PROSECUTOR]: And do they still do it that
[DEPUTY BURGESS]: Yes, they do.
[PROSECUTOR]: Now, is there a document in your
file that is consistent with the documents
that you received currently here in 2005 from
[DEPUTY BURGESS]: Yes, there is.
[PROSECUTOR]: (Hands Witness Exhibit) I am
going to show you what's previously been
marked as State's Exhibit Number 11. Can you
identify this document?
[DEPUTY BURGESS]: Yes, I can.
[PROSECUTOR]: And what is that?
[DEPUTY BURGESS]: It is the message that the
Department of Correction sent our agency.
[DEFENSE ATTORNEY]: Objection, unless he has
personal knowledge of it.
[THE COURT]: Objection is overruled. It is
admitted under Rule 803(6) -- strike that.
Yes, sir, Rule 803(6) of the Rules of
[PROSECUTOR]: Was this, in fact, obtained from
your file on Danny Wise?
[DEPUTY BURGESS]: Yes, it was.
The trial court also admitted a Sex Offender Registration
Worksheet which defendant completed with the assistance of Deputy
Deaver of the Cabarrus County Sheriff's Office. This document
contained, inter alia, background information about defendant and
his date of release from prison following his conviction for a sex
offense. Deputy Deaver did not testify; however, Deputy Burgess
offered the following testimony concerning the document: [PROSECUTOR]: (Hands Witness Exhibit) Now, I
am going to show you another document that has
previously been marked as State's Exhibit
Number 12. Can you identify this document?
[DEPUTY BURGESS]: Yes that's the sex offender
[PROSECUTOR]: Okay. Is it a record that was
made by the sheriff's department?
[DEFENSE ATTORNEY]: Objection, unless he has
personal knowledge of the creation.
[THE COURT]: Objection overruled.
[PROSECUTOR]: As the custodian, was this a
record that was made by the sheriff's
[DEPUTY BURGESS]: Yes, it was.
. . . .
[PROSECUTOR]: Is it kept in the normal course
of business by your office?
[DEPUTY BURGESS]: Yes, it is.
[PROSECUTOR]: Is it regular practice of the
sheriff's department, in fact, to establish a
sex offender worksheet when a person initially
comes and registers?
[DEPUTY BURGESS]: Yes, sir. Every time.
Based on Deputy Burgess' testimony, the trial court admitted both
documents into evidence.
Defendant contends that, because some police reports are
specifically excluded from the hearsay exception of Rule 803(8),
which addresses the admissibility of public records and reports,
the documents at issue necessarily were excluded from admission
under Rule 803(6) as records of regularly conducted activity. However, we are not persuaded that the inadmissibility of evidence
under one hearsay exception necessarily precludes admission under
another exception. Further, the language of Rule 803(8) plainly
indicates that the legislature is fully capable of excluding
certain police reports from a hearsay exception if it so desires.
The legislature chose not to limit the applicability of Rule 803(6)
to police records and reports which qualify as records of regularly
conducted activity. Therefore, there is no merit in defendant's
argument that Rule 803(6) is limited by Rule 803(8).
Moreover, we conclude that Deputy Burgess' testimony sufficed
to show that the Notice of Pending Registration and the Sex
Offender Registration Worksheet were records of regularly
conducted activity admissible under 803(6), and the trial court
properly allowed them into evidence.
This assignment of error is overruled.
 In his second argument on appeal, defendant contends that
he is entitled to a new trial because the trial court departed from
its neutral role as a judicial officer by assisting the prosecution
in its understanding of the elements of the offense charged and the
type of evidence needed to prove its case. This contention lacks
'The law imposes on the trial judge the duty of absolute
impartiality.' State v. Fleming, 350 N.C. 109, 125-26, 512 S.E.2d
720, 732 (1999) (citation omitted). However, [n]ot every ill-advised expression by the
trial judge is of such harmful effect as to
require a reversal. The objectionable language
must be viewed in light of all the facts and
circumstances, 'and unless it is apparent that
such infraction of the rules might reasonably
have had a prejudicial effect on the result of
the trial, the error will be considered
State v. Blue, 17 N.C. App. 526, 529, 195 S.E.2d 104, 106 (1973)
(citations omitted). Indeed, our Supreme Court has declined to
hold that the following conduct by a trial judge was prejudicial to
[T]he judge informed the prosecutor that
certain statements would be inadmissible; so
the prosecutor rephrased his questions to
restrict the witness' response.... During a
bench conference, the judge explained to the
prosecutor that luminal only reacts to the
heme in hemoglobin, not to animal fat. On
three occasions the judge intervened ex mero
motu to correct improper questions, once to
explain in a bench conference why the question
was improper and twice to rephrase a question.
Several times the judge explained why he
sustained or overruled defense counsel's
objections. On two occasions the prosecutor
had to rephrase his questions--the latter
instance was based on hearsay which the judge
subsequently ruled was not hearsay, explaining
why it was not to defense counsel in a bench
conference. At another point the judge
sustained defendant's objection and during the
ensuing bench conference suggested how the
question could be rephrased. On another
occasion after two objections by defense
counsel, the judge rephrased the question for
Fleming, 350 N.C. at 127, 512 S.E.2d at 733.
In the instant case, the prosecution initially failed to
produce evidence of defendant's release date from prison. Duringa discussion with the trial court, the prosecutor contended that he
did not have to produce evidence of a release date because the
applicability of the statute was an issue of law to be decided by
the court rather than an issue of fact to be decided by the jury.
The following colloquy then ensued:
THE COURT: . . . [T]he statute clearly
says Sections 1 and 2 of this act became
effective January 1, 1996, and are applicable
to all persons convicted on or after that date
and to all persons released from a penal
institution on or after that date period.
After hearing this discussion and
thinking about this thing, in the context of
this case, where a person is released --
strike that -- where a person is convicted
prior to the effective date of this statute, I
think that this statute creates an additional
requirement that the State must be able to
prove in order to get along in this case; and
so are you asking now that the State be
permitted to reopen its case in chief and to
-- do you have the evidence of when the --
[PROSECUTOR]: Yes, sir, I have that
THE COURT: In my discretion, I will allow
it. I will allow it. I mean, I plan on not
committing any injustice to be done in that.
The defendant objects to that?
[DEFENSE ATTORNEY]: Absolutely, Your
Thereafter, the prosecution presented evidence that defendant had
a release date of 2 June 1998.
Defendant claims that the judge acted as the prosecutor by
allowing the prosecution to reopen the case and suggesting to the
prosecution that it needed to make a motion to reopen the case. Furthermore, defendant claims that had the judge not appraised the
prosecutor of the law, the State's case against defendant would
have failed, and therefore the judge's interference was
prejudicial. In making these assertions, defendant relies upon
State v. Steele, 23 N.C. App. 524, 209 S.E.2d 372 (1974). In
Steele, the judge interjected over 100 times with questions and
comments, which cumulatively had the effect of prejudicing the
jury. Id. at 525, 209 S.E.2d at 373.
The instant case is clearly distinguishable from Steele,
because in the present case the judge merely settled a legal
dispute outside of the presence of the jury. Further, given the
facts and circumstances of the present case, we hold that the judge
did not depart from his neutral role as a judicial officer by
discussing the law with the attorneys or by permitting the State to
reopen its case.
This assignment of error is overruled.
 In his third argument on appeal, defendant asserts that
the trial court erred by allowing the State to reopen its case and
present additional evidence (of defendant's release date) after the
parties had rested but before the case was presented to the jury.
Pursuant to section 15A-1226 of the General Statutes, [t]he judge
in his discretion may permit any party to introduce additional
evidence at any time prior to verdict. N.C. Gen. Stat. §15A-
1226(b) (2005). A judge's decision in this regard will be reversedonly upon a showing of an abuse of discretion. State v. Riggins,
321 N.C. 107, 109, 361 S.E.2d 558, 559 (1987). We discern no such
abuse of discretion in the instant case.
This assignment of error is overruled.
 In his fourth argument on appeal, defendant contends that
the trial court erred by denying his motion to dismiss the charge
of failing to register as a sex offender. This contention lacks
A trial court should deny a motion to dismiss if, considering
the evidence in the light most favorable to the State and giving
the State the benefit of every reasonable inference, there is
substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the offense.
State v. Crawford
, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996).
Substantial evidence is relevant evidence that a reasonable mind
might accept as adequate to support a conclusion. Id
rule for determining the sufficiency of evidence is the same
whether the evidence is completely circumstantial, completely
direct, or both. State v. Wright
, 302 N.C. 122, 126, 273 S.E.2d
699, 703 (1981).
If a person required to register [as a sex offender] 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) (2005). Failing to notify the last registering
sheriff of a change of address is a Class F felony. N.C. Gen.
Stat. § 14-208.11(a)(2) (2005).
Defendant insists that there was no evidence that he failed to
change his registered address within ten days of moving. More
specifically, defendant notes that his confession supplied the only
evidence of a change of address, and the confession provided no
time frame for when he moved from his registered address at St.
John's Church Road. However, we conclude that the language of
defendant's confession, taken in the light most favorable to the
State, was sufficient to permit the jury to infer that defendant
had not lived at the registered address within ten days of his
The evidence before the jury tended to show that, in June of
2003, defendant informed the Cabarrus County Sheriff's Office that
his address was 1000 Saint John's Church Road. Authorities did not
attempt to locate defendant at that address until over a year
later, in July of 2004. In his confession defendant stated, I
. . . didn't stay with my father at 1000 Saint John's Church Road
. . . because when [I] went to live there, Margie Isenhower was
living with my father. From this language, the jury could infer
that the father's girlfriend was living at the St. John's Church
Road address at the time defendant moved there. Further, a
reasonable juror could infer that defendant's problems with his
father's girlfriend began soon after he began living at thisaddress, and caused defendant to move out soon thereafter. We note
also that defendant's statement permits an inference that he did
not actually stay at the St. John's Church Road address inasmuch as
he used the language when [I] went
to live there . . . as opposed
to when I lived
there. (Emphasis added.)
Defendant also indicated that he moved to another address in
a different county before moving to the 176 Cabarrus Avenue
address, where he was living when the deputy tried to locate him.
In his confession, defendant used the language, Lately
, I have
been living . . . at 176 Cabarrus Avenue . . . . (Emphasis
added.) Especially given that defendant had two previous addresses
within that same time period, his use of the term lately permits
an inference that he had not lived at the St. John's Church Road
for a period in excess of ten days.
Defendant also argues that the trial court should have
dismissed the sex offender registration charge because there was no
evidence that he was released from prison on or after 1 January
1996, which, according to defendant, is required to sustain a
conviction for this offense. However, as indicated in section I of
this opinion, the State did present evidence that, on 2 June 1998,
defendant was released from the prison sentence imposed for taking
indecent liberties with a child.
Therefore, the State's evidence was sufficient for the case to
go to the jury. The trial court did not err by denying defendant's
motions to dismiss. This assignment of error is overruled. No error.
Judges CALABRIA and STEELMAN concur.
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