Appeal by defendant from judgment entered 21 February 2002 by
Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard
in the Court of Appeals 3 December 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General John J. Aldridge, III, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Janet Moore, for defendant-appellant.
In State v. Bryant, 163 N.C. App. 478, 478-79, 594 S.E.2d 202,
203 (2004), we reversed defendant's conviction for failing to
register as a convicted sex offender under N.C. Gen. Stat. § 14-
208.11 (2005) on the grounds that the statute was unconstitutional
as applied to defendant, because defendant lacked notice that he
was required to register in North Carolina when he moved from South
Carolina. Due to this holding, we did not reach defendant's other
assignments of error. Our Supreme Court reversed and remanded to
us for consideration of the remaining issues raised by defendant.
State v. Bryant, 359 N.C. 554, 569-70, 614 S.E.2d 479, 489 (2005).
We address those issues here. The facts in this case have been set forth in the earlier
opinions of this Court and the North Carolina Supreme Court. We do
not repeat them in detail here. The State's evidence tended to
show that defendant pled guilty in 1991 to third degree criminal
sexual conduct in South Carolina. As a result of this conviction,
defendant was required to register as a sex offender. When
defendant was released from prison in 2000, he registered in South
In late 2000, defendant found work with a traveling fair that
passed through Winston-Salem, North Carolina. Defendant was
hospitalized there as a result of a workplace injury. When he was
released from the hospital, defendant chose to remain in Winston-
Salem. In March 2001, the local police learned that defendant had
not registered in North Carolina. Defendant was arrested and
indicted for failing to register as a sex offender in violation of
N.C. Gen. Stat. § 14-208.11 and for having attained the status of
a habitual felon. A jury found him guilty of failing to register
and of being a habitual felon, and the trial court sentenced him to
133 to 169 months imprisonment.
Defendant first argues that the trial court erred by failing
to instruct the jury that it was required to find that defendant's
failure to register was knowing and intentional. It is, however,
established that knowledge and intent are not elements of the
offense of failing to register as a convicted sex offender under
N.C. Gen. Stat. § 14-208.11: "[§ 14-208.11] 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." State v. Young
, 140 N.C. App. 1,
8, 535 S.E.2d 380, 384 (2000), disc. review
, 354 N.C. 213, 552
S.E.2d 142 (2001). See also State v. Holmes
149 N.C. App. 572, 577, 562 S.E.2d 26, 30
(2002) ("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. White
, 162 N.C. App. 183, 188, 590 S.E.2d 448, 452 (2004).
We, therefore, overrule this assignment of error.
Defendant next argues that the trial court erred by admitting
evidence of defendant's prior sex offense convictions. Defendant
argues, relying upon Old Chief v. United States
, 519 U.S. 172, 136
L. Ed. 2d 574, 117 S. Ct. 644 (1997), that the trial court should
have, under Rule 403 of the Rules of Evidence, allowed defendant to
stipulate to his prior convictions rather than permitting the State
to present direct evidence of them. Defendant concedes that he did
not request such a stipulation at trial, but argues that the
admission of the prior convictions constituted plain error.
"Under plain error review, reversal is justified when the
claimed error is so basic, prejudicial, and lacking in its elements
that justice was not done," State v. Miller
, 357 N.C. 583, 592, 588
S.E.2d 857, 864 (2003) (internal quotation marks omitted), cert.
, 542 U.S. 941, 159 L. Ed. 2d 819, 124 S. Ct. 2914 (2004),
and "absent the [claimed] error, the jury probably would have
reached a different result." State v. Jones
, 355 N.C. 117, 125,558 S.E.2d 97, 103 (2002). We hold that no such error occurred in
the present case.
Defendant's failure to make an offer of a stipulation
distinguishes his case from Old Chief
, in which the Government,
with the approval of the trial court, declined defendant's offer to
stipulate to his prior offenses and instead chose to present direct
evidence of those offenses. Old Chief
, 519 U.S. at 177, 136 L. Ed.
2d at 585, 117 S. Ct. at 648. This Court has held that, without an
offer of stipulation by defendant, "[t]he State . . ., unlike the
Government in Old Chief
, had no alternative but to introduce
evidence of Defendant's prior convictions in order to meet its
burden of showing an element of the crime charged." State v.
, 128 N.C. App. 745, 747, 497 S.E.2d 111, 113 (1998).
Therefore, "[a]bsent an offer of a stipulation or admission to the
prior convictions by Defendant, the reasoning of Old Chief
(holding that no error, "plain or otherwise," occurred
under Old Chief
when defendant failed to offer to stipulate).
The reasoning in Faison
applies here. Since defendant did not
offer to stipulate to his prior convictions, the State had no
alternative but to present witnesses who could testify that
defendant had been convicted of sex offenses in another
jurisdiction and was, therefore, required to register in North
Carolina. Old Chief
is, therefore, inapposite, and this assignment
of error is overruled.
In the alternative, defendant argues that his trial counsel's
failure to make an offer of stipulation and object properly to theadmission of the prior convictions constitutes ineffective
assistance of counsel. Under Strickland v. Washington
, 466 U.S.
668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), a
defendant must show not only that his counsel made errors, but that
the deficient performance prejudiced his defense. Defendant has
failed to make an adequate showing of prejudice. In his appellate
brief, defendant argues only generally that "[p]rejudice from such
failure [regarding the prior convictions] is established if this
Court decides this Issue against defendant based on trial waiver."
Given that the only significant issue at trial was defendant's
knowledge of the need to register _ a fact not material to
defendant's guilt _ defendant has failed to demonstrate that the
admission of the convictions, relevant to prove an element of the
charged offense, affected the jury's verdict. Without such a
showing, defendant has failed to establish ineffective assistance
Defendant's final argument on appeal is that the trial court
erred by denying his motion to dismiss his habitual felon charge
because (1) no factual basis existed for his 1996 sex offense
conviction in South Carolina, and (2) that 1996 conviction was used
both to establish defendant's guilt on the failure-to-register
charge and to establish defendant's status as a habitual felon. We
With respect to the legitimacy of the 1996 conviction _ which
resulted from a guilty plea _ defendant argues that because he was
incarcerated during the time period when the crime occurred, hecould not have committed the crime. This argument constitutes an
improper collateral attack on the 1996 conviction that may not
properly be considered in connection with the habitual felon
charge. State v. Flemming
, 171 N.C. App. 413, 417, 615 S.E.2d 310,
313 (2005) ("Questioning the validity of the original conviction is
an impermissible collateral attack. A defendant may not
collaterally attack a prior conviction which is the basis of an
habitual felon charge." (internal citation omitted)).
Defendant further contends that his double jeopardy rights
were violated when the State relied upon the 1996 conviction as a
basis for establishing that defendant had unlawfully failed to
register and also as one of the predicate felonies underlying the
habitual felon charge. This Court has repeatedly held that no
double jeopardy concerns arise in this context. See State v.
, No. COA05-902, __ N.C. App. __, __, __ S.E.2d __, __ (August
1, 2006) (holding that use of a prior felony conviction as the
basis both for a conviction for possession of a firearm by a felon
and for the habitual felon charge did not violate double jeopardy);
State v. Glasco
, 160 N.C. App. 150, 160, 585 S.E.2d 257, 264
("[E]lements used to establish an underlying conviction may also be
used to establish a defendant's status as a habitual felon."),
disc. review denied
, 357 N.C. 580, 589 S.E.2d 356 (2003); State v.
, 123 N.C. App. 156, 158, 472 S.E.2d 191, 192 (holding
that prior impaired driving convictions could be used both to
establish the offense of habitual impaired driving and thatdefendant was a habitual felon), cert. denied
, 344 N.C. 441, 476
S.E.2d 128 (1996).
Having overruled all of defendant's remaining assignments of
error upon remand, we hold that there was no error in defendant's
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
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