STATE OF NORTH CAROLINA
v. Haywood County
Nos. 05 CRS 52464, 3658
JOSEPH RAY HOWES, JR.
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
William B. Gibson for defendant-appellant.
CALABRIA, Judge.
Joseph Ray Howes, Jr. (“defendant”) appeals from a judgment
entered upon jury verdicts finding defendant guilty of failure to
register as a sex offender and of attaining the status of an
habitual felon. We find no error.
The State and the defendant stipulated that on 23 March 1998
defendant was convicted of second degree rape in Buncombe County
Superior Court. At trial, the State presented evidence tending to
show that on 29 April 2005, Donna Henson (“Henson”), who works in
the Haywood County Sheriff's Office and is primarily responsible
for sex offender registration, received notification defendant was
moving to Haywood County. Defendant came to Henson's office on 2May 2005 and completed a registration card verifying that he would
be residing at 266 Birchwood Circle in Clyde, North Carolina.
Henson advised defendant that if he changed his address, he had to
“provide written notification of this address change to the sheriff
in the county where he ... [is] most currently registered.” This
written notification of an address change occurred either by letter
or by personally visiting the sheriff's office and completing a
change of address form. Defendant responded that he understood
this requirement.
Subsequently, Henson received an anonymous telephone call
reporting defendant no longer resided at 266 Birchwood Circle
(“Birchwood”). Henson asked Lieutenant Patrick Steven Mann
(“Lieutenant Mann”) of the Haywood County Sheriff's Department to
visit this address to determine whether defendant still resided
there. Lieutenant Mann traveled to Birchwood on 2 July 2005 and
spoke to Carolyn Sue Price (“Price”). Price stated defendant lived
with her at Birchwood until either late May or late June 2005, when
he left the residence and moved to Asheville. On 12 July 2005,
Lieutenant Mann obtained a warrant charging defendant with failure
to register as a sex offender. Henson received neither written
notification from defendant regarding any change of address nor saw
him personally in the Sheriff's Office to complete the change of
address form. Defendant did not testify or present any evidence.
On 7 December 2005, defendant was found guilty of failure to
register as a sex offender. On 8 December 2005, defendant was
found guilty of attaining the status of an habitual felon. Defendant was sentenced to a minimum of 138 months to a maximum of
175 months imprisonment in the North Carolina Department of
Correction.
Defendant appeals.
Defendant argues the trial court erred in denying his motion
to dismiss. Defendant contends the State presented insufficient
evidence. We disagree.
To withstand a motion to dismiss, the State must present
substantial evidence to establish each element of the offense
charged and to identify the defendant as the perpetrator. State v.
Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). In
deciding the motion, the court must examine the evidence in the
light most favorable to the State, giving it the benefit of every
reasonable inference that may be drawn. State v. McKinney, 288
N.C. 113, 117, 215 S.E.2d 578, 581 (1975). “If there is
substantial evidence _ whether direct, circumstantial, or both_ to
support a finding that the offense charged has been committed and
that the defendant committed it, the case is for the jury and the
motion to dismiss should be denied.” State v. Locklear, 322 N.C.
349, 358, 368 S.E.2d 377, 383 (1988).
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 case sub judice, defendant asserts in his brief that he
could not be convicted of the instant offense because he had “notyet acquired a new address” and therefore, could not notify the
sheriff of any change in address.
At trial, however, defendant
moved to dismiss and argued that the State failed to prove “exactly
when [defendant] was supposed to have left Price's residence.
There's some discrepancy about that, and I would argue that that's
not been proven.” Thus, defendant is attempting to argue on appeal
what he failed to raise and contend at the trial court. Our
Supreme Court “has long held that where a theory argued on appeal
was not raised before the trial court, 'the law does not permit
parties to swap horses between courts in order to get a better
mount'” on appeal. State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d
3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836,
838 (1934)). Consequently,
this assignment of error is overruled.
Defendant failed to present any argument regarding his
remaining two assignments of error and thus, they are abandoned.
See N.C. R. App. P. 28(b)(6) (2005).
No error.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
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