STATE OF NORTH CAROLINA
Nos. 03 CRS 55827, 37601
MICHAEL EUGENE AUMAN
Attorney General Roy Cooper, by Assistant Attorney General
Lorrin Freeman, for the State.
Eric A. Bach for defendant-appellant.
Michael Eugene Auman (defendant) appeals a judgment upon jury verdicts finding him guilty of failing to register as a sex offender and attaining the status of an habitual felon. We find no error.
At trial, defendant stipulated on September 2nd, 1999...[he] was convicted of a sex offense [and] that due to the nature of the crime this sex offense was a reportable sex offense for the purposes of North Carolina's sex offender registration. Further, defendant stipulated [he] concede[d] this element of the offense. The defendant's registered address was 5331 Stigall Road, Kernersville, North Carolina. The State presented the following evidence at trial: in March of 2003, Deputy Sharon Reid (Deputy Reid) of the Forsyth County Sheriff's Office received information that defendant was not living at the Stigall Road address and investigated his whereabouts. On 11 March 2003, Deputy Reid went to the Stigall Road address but was unable to get anyone to the door. On 12 March 2003, Deputy Reid spoke with Randy Parrish, defendant's uncle, who informed her defendant did not live at that residence. Janice Hoppe (Ms. Hoppe), a longtime friend of defendant's mother, testified she rented a room to defendant at 4901 Talphin Drive where he stayed for [a]pproximately six nights out of three weeks in January 2003. Later that month, Ms. Hoppe noticed something in the bedroom where [defendant] was sleeping that [she] did not approve of and [she] asked [defendant] to leave. The State presented evidence and defendant stipulated he previously pled guilty to three felonies: indecent liberties with a minor; possession of a firearm by a felon; and, accessory after the fact.
Defendant's witness Bernard Parrish (Mr. Parrish) testified from June of 2003 until the present, he resided at 136 Willowmont Street in Kernersville. Mr. Parrish stated he also owns the residence at 5331 Stigall Road where defendant lived with him in 2003 before he got arrested. Further, Mr. Parrish testified defendant had his private room, personal possessions, and mail at the Stigall Road address. Defendant did not testify.
Defendant was found guilty of failure to register as a sex offender and of attaining the status of an habitual felon. Defendant was sentenced to a minimum of 116 months to a maximum of 149 months imprisonment in the North Carolina Department of Correction. Defendant appeals.
I. Habitual Felon Indictment and Jury Instructions:
Defendant first argues the trial court erred by failing to dismiss the habitual felon indictment and consequently, improperly instructing the jury. Defendant contends the evidence demonstrated the State relied on an incorrect date for the conviction of possession of a firearm by a felon. We disagree.
To attain the status of an habitual felon, the defendant must either have been found guilty or pled guilty to three felonies in any state or federal court. N.C. Gen. Stat. § 14-7.1 (2005). Under this statute, each successive felony must occur after the conviction of a previous felony. Id. Thus, [i]f the jury finds that the defendant is an habitual felon, the trial judge shall enter judgment according[ly]. N.C. Gen. Stat. § 14-7.5 (2005).
In the instant case, defendant was arrested on 8 May 1999 for indecent liberties with a minor and subsequently convicted on 2 September 1999. Defendant was then arrested on 24 September 1999 for possession of a firearm by a felon and subsequently convicted on 12 January 2000. Finally, defendant was arrested on 14 March 2001 for accessory after the fact and subsequently convicted on 6 July 2001.
Defendant does not deny the validity of these convictions, but instead contends that because the bill of information charging him with possession of a firearm by a felon lists the date that crimeoccurred as 8 May 1999, the same day he committed the crime of indecent liberties with a minor, the trial court should have dismissed the habitual felon indictment sua sponte as it did not comport with the dictates of N.C. Gen. Stat. § 14-7.1, supra. We find this argument unavailing. Defendant stipulated to the three felonies above and the stipulations included the dates he committed each individual offense. Thus, defendant stipulated he was a felon in possession of a firearm on 24 September 1999. Though the bill of information lists the incorrect date for when the possession of a firearm by a felon offense occurred, the indictment for attaining the status of an habitual felon correctly lists the date defendant committed this offense as 24 September 1999. Moreover, the trial court correctly instructed the jury that if you find from the evidence and beyond a reasonable doubt that defendant...pled guilty on each applicable date to the three felony offenses committed on each respective date (including the offense of felon in possession of a firearm committed on 24 September 1999) it would be your duty to return a verdict of guilty of being an habitual felon. However, the trial court cautioned the jury if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty. Thus, the jury was properly instructed regarding the habitual felon offense. This assignment of error is overruled.
II. Due Process and Double Jeopardy:
Defendant next argues the trial court erred in allowing the State to use his conviction of indecent liberties with a child as anelement of the offense of failing to register as a sex offender. Further, defendant argues the trial court erred in using the same indecent liberties conviction as a predicate conviction for purposes of the habitual felon charge. We disagree.
First, though defendant asserts a due process violation, he presents no argument to support this contention and thus, pursuant to N.C. R. App. P. 28(b)(6), it is abandoned. As to the double jeopardy argument, this Court previously held the State may use a felony conviction to serve as the predicate for a conviction of possession of a firearm by a felon, and in turn, use both of those convictions to help establish a habitual felon charge. State v. Glasco, 160 N.C. App. 150, 160, 585 S.E.2d 257, 264, disc. review denied, 357 N.C. 580, 589 S.E.2d 356 (2003) (citing State v. Misenheimer, 123 N.C. App. 156, 158, 472 S.E.2d 191, 192-93 (1996)). In doing so, we have rejected the double jeopardy argument now raised by defendant. Id. Accordingly, this assignment of error is overruled.
III. Motion to Dismiss:
Defendant next argues the trial court erred in failing to grant his motion to dismiss the charge of failing to register as a sex offender. Defendant contends the State offered insufficient evidence to prove he changed his address or residence. We disagree.
A motion to dismiss is viewed in the light most favorable to the State. State v. Baldwin, 141 N.C. App. 596, 604, 540 S.E.2d 815, 821 (2000). If we find that substantial evidence exists to support each essential element of the crime charged and thatdefendant was the perpetrator, it is proper for the trial court to [have denied] the motion. State v. Stephens, __ N.C. App. __, __, 623 S.E.2d 610, 615 (2005) (citation and internal quotation marks omitted). Substantial evidence is that which a reasonable juror would consider sufficient to support the conclusion that each essential element of the crime exists. Baldwin, 141 N.C. App. at 604, 540 S.E.2d at 821. The two essential elements the State must prove regarding the offense of failing to register as a sex offender are 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. Holmes, 149 N.C. App. 572, 577, 562 S.E.2d 26, 30 (2002).
In the instant case, defendant stipulated at trial he was convicted of a sex offense [and] that due to the nature of the crime this sex offense was a reportable sex offense for the purposes of North Carolina's sex offender registration. Consequently, defendant conceded to the first element of this offense. As to the second element, the State presented substantial evidence in the form of the testimony of Deputy Reid and Ms. Hoppe that defendant was not residing at his registered address and had changed his address without notifying authorities. That the evidence could be interpreted differently is immaterial, so long as a rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Barnette, 304 N.C. 447, 458, 284 S.E.2d 298, 305 (1981). Here, there was abundant evidence to support the jury's finding. This assignment of error is overruled.IV. Ineffective Assistance of Counsel:
Defendant lastly argues his attorney's failure to move to dismiss the habitual felon indictment raises a claim of ineffective assistance of counsel. We disagree. A defendant may prevail on an ineffective assistance of counsel argument if he can show that his attorney failed to move for dismissal at the proper time and can further demonstrate that such a motion would have been granted as a matter of law. State v. Hinnant, 131 N.C. App. 591, 597, 508 S.E.2d 537, 540 (1998), aff'd in part and reversed on other grounds in part, 351 N.C. 277, 523 S.E.2d 663 (2000). As we previously determined, however, defendant's argument relating to dismissing the habitual felon indictment is without merit. Thus, for that reason we reject defendant's ineffective assistance of counsel argument. This assignment of error is overruled.
Defendant failed to present any argument regarding assignments of error two, three, four, and nine and thus, according to N.C. R. App. 28(b)(6) (2005), they are abandoned.
Judges McGEE and GEER concur.
Report per Rule 30(e).
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