STATE OF NORTH CAROLINA
v
.
Forsyth County
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.
CALABRIA, Judge.
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.
No error.
Judges McGEE and GEER concur.
Report per Rule 30(e).
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