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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA07-345
            
                                    
NORTH CAROLINA COURT OF APPEALS
    
                                    
Filed: 4 December 2007


STATE OF NORTH CAROLINA
    

v .                         Alexander County
                            No. 05 CRS 51338
LARRY ROGER AYSCUE, JR.                
    

    Appeal by Defendant from judgment entered 18 October 2006 by Judge Mark E. Klass in Alexander County Superior Court. Heard in the Court of Appeals 17 October 2007.
                                    
    Attorney General Roy Cooper, by Special Deputy Attorney General Robert C. Montgomery and Assistant Attorney General Chris Z. Sinha, for the State.
                
    Anne Bleyman, for Defendant.
                        

    ARROWOOD, Judge.

    On 3 January 2006, Defendant was indicted for Failure to Notify Registering Sheriff of a change of address by a sex offender in violation of N.C. Gen. Stat. § 14-208.11 and of being an Habitual Felon in violation of N.C. Gen. Stat. § 14-7.1.
    On 18 October 2006, Defendant was convicted of violation N.C. Gen Stat. § 14-208.11. The jury then proceeded to determine that Defendant had attained the status of being an habitual felon. Defendant's status as an habitual felon required that he receive a sentence as a Class C Felon. The court sentenced him to 140 to 177 months imprisonment which was in the presumption range ofpunishment for a Class C felon. From this judgment, Defendant timely appealed.
    In the Record, Defendant sets forth ninety-eight (98) Assignment of Errors. In his brief he raises only three (3) questions which are based upon eight (8) Assignments of Error. The remaining ninety (90) Assignment of Errors are deemed abandoned. N.C R. App. P. 28(b)(6). We have reviewed the questions presented and find no error.
    The relevant evidence is summarized as follows: On 5 April 1989 and 18 March 1989, Defendant committed the offense of indecent liberties in violation of N.C. Gen. Stat. § 14-202.1. He was sentenced to five years incarceration. The sentence was suspended, and Defendant was placed on supervised probation for five years. On 19 July 1993, judgment was entered against Defendant for assault with a deadly weapon inflicting serious injury, and Defendant was again sentenced to five years incarceration. Furthermore, on 23 August 1993, the trial court revoked Defendant's probation on his 1989 indecent liberties convictions, and Defendant's suspended indecent liberties sentence was activated; Defendant was sentenced to five years imprisonment “at the expiration of all sentences which the defendant is presently obligated to serve.” On 25 July 1995, Defendant was sentenced to an additional two year term for a conviction of assault inflicting serious injury. Because the 25 July 1995 judgment was not introduced as evidence, the record does not reflect whether this two year sentence was to be servedconcurrently or consecutively. On 10 December 1996, Defendant was paroled and released from prison.
    On 11 February 2005, Defendant signed the form specifying the requirements for registration of sex offenders, which stated that failure to comply with the requirements, including providing written notification of Defendant's address changes, was a Class F felony. From 29 November 2004 to 6 December 2005, Defendant notified the Sheriff's office of an address change on eight separate occasions.
    On 24 June 2005, Keith Warren (Warren), Chief Detective with the Alexander County Sheriff's Office, investigated a fire at Lisa Bowman's (Bowman) residence in Alexander County, and Warren spoke to Defendant:
        I was called out [in] the early AM hours, the morning of the 24th regarding a structure [fire]. I responded to the scene[,] [and] [o]bserved a single-wide mobile home[,] [which] [h]ad sustained quite a bit of damage especially to the center section[.] . . . [Bowman stated that Defendant] had been living with her for approximately one month [before the fire].

During the course of Warren's interview with Defendant regarding the fire at Bowman's residence, Defendant stated that he “had been staying [at Bowman's residence] for a couple of weeks. I do not remember an exact . . . time frame. He just stated a couple of weeks.” Warren also stated the following:
        Q:     And what did [Defendant] indicate to you as his current address?

        A:     [Bowman's residence.]
        Q:     And is that an address familiar to you as to whether or not it's in Alexander County?

        A:     Yes, sir.

        Q:     And is that, in fact, in Alexander County?

        A:     Yes, sir.
    On 11 July 2005, a warrant was issued for Defendant's arrest for failure to register as a sex offender in violation of N.C. Gen. Stat. § 14-208.11 (2005). On 3 January 2006, Defendant was indicted by the Grand Jury of Alexander County. The matter came to trial on 17 October 2006 in Alexander County Superior Criminal Court.
    At the close of the State's evidence, Defendant made a motion to dismiss, contending that the State failed to prove that Defendant was required to register under Article 27A. The State moved to re-open the evidence, which the court granted. After the State presented additional evidence, Defendant again moved to dismiss; the court denied Defendant's motion. Defendant presented evidence, and at the close of all evidence, Defendant made a third motion to dismiss, which the trial court again denied.
    On 18 October 2006, the jury found Defendant guilty of felony failure to notify the registering Sheriff of a change of address by a sex offender in violation of G.S. § 14-208.11. The court entered judgment against Defendant, sentencing Defendant as an habitual felon in the presumptive range to 140 to 177 months imprisonment. From this judgment, Defendant appeals.

I: Motion to Dismiss
    Defendant first argues that the trial court erred by denying his motions to dismiss. We disagree.
    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. “[T]he 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).
    The North Carolina Sex Offender & Public Protection Registry applies to all offenders convicted on or after 1 January 1996 and to all prior offenders released from prison on or after that date. State v. White, 162 N.C. App. 183, 185, 590 S.E.2d 448, 450 (2004) (citing 1995 N.C. Sess. Laws ch. 545, § 3). The Registry requires individuals who have committed an offense against a minor or a sexually violent offense to register as sex offenders. N.C. Gen. Stat. § 14-208.6(4) and § 14-208.7(a) (2005). “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 countywith whom the person had last registered.” N.C. Gen. Stat. § 14-208.9(a) (2005) (emphasis added). 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).
    In order to convict defendant of failure to register as a sex offender, 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. Harrison, 165 N.C. App. 332, 334, 598 S.E.2d 261, 262 (quoting State v. Holmes, 149 N.C. App. 572, 577, 562 S.E.2d 26, 30 (2002)), disc. rev. denied, 359 N.C. 72, 604 S.E.2d 922 (2004).
    Initially, Defendant challenges the sufficiency of the evidence for the first element of the offense, that “[D]efendant [was] a sex offender who [was] required to register[.]” Harrison, 165 N.C. App. at 334, 598 S.E.2d at 262. Defendant argues that Article 27A did not apply to Defendant because “there was insufficient evidence that he was released from prison for a reportable offense on or after 1 January 1996.” See White, 162 N.C. App. at 185, 590 S.E.2d at 450 (stating that Article 27A applies to “prior offenders released from prison on or after [1 January 1996]”). Defendant contends that because Article 27A did not apply to him, the court lacked subject matter jurisdiction to enter the judgment against him in violation of G.S. § 14-208.11.
    Defendant specifically argues that although the Division of Criminal Information (DCI) printout showed a parole date of 10 December 1996, the printout did not prove that Defendant wasreleased after January 1, 1996 for a “[r]eportable conviction.” See N.C. Gen. Stat. § 14-208.6(4) (2005). Rather, Defendant says there was a possibility that Defendant could have been paroled prior to 1 January 1996 if not for the imposition of the subsequent two year term for the 25 July 1995 assault inflicting serious injury conviction, especially since Defendant was initially sentenced under the Fair Sentencing Act. See N.C. Gen. Stat. § 15A-1340.1 _ 1340.7, repealed by 1993 N.C. Sess. Laws ch. 538, § 14. We find this argument unpersuasive.
    In the instant case, the question for this Court is whether the State supplied substantial evidence that Defendant's probation revocation and activated indecent liberties sentence on 23 August 1993 made Defendant subject to the North Carolina Sex Offender & Public Protection Registry. N.C. Gen. Stat. §§ 14-208.6(4), 14-208.7(a) (2005). The following evidence was admitted to prove that Article 27A applied to Defendant. Danny Dyson, the Alexander County Clerk of Superior Court supplied information about Defendants' 1989 indecent liberties charges, which would make Defendant subject to the provisions of Article 27A if the State also proved that Defendant was released from prison on the foregoing “[r]eportable conviction” on or after 1 January 1996:
        Q:     And does this file indicate a disposition date on this particular charge?
        
        A:     Yes, sir.
        
        Q:     And what is the disposition date that's indicated?
            
        A:     May the 30th, 1989.
                Q:     And what is the charge at the time of disposition reflected in this file?
        
        A:     It's a felony charge of indecent liberties with a child.
        
        Q:     And does it indicate what the verdict was that was entered in this file?

        A:     Yes. The Defendant was sentenced to five years, put on supervised probation for five years.

        . . . .
        
        Q:     And is there any information recorded on this document on the status of the Defendant's probation subsequent to May 30, 1989 when he was originally convicted?
        
        A:     Yes, sir.
        
        Q:     What information is recorded there?
        
        A:     The Defendant's probation was revoked and his sentence was activated.
        
        Q:     And is there a date recorded for that?
            
        A:     August the 23rd, 1993.
    
The State also introduced evidence of the 19 July 1993 conviction of assault with a deadly weapon inflicting serious injury. On this charge, Defendant was incarcerated for five years. The State correctly points out that the judgment and commitment upon revocation of Defendant's probation provides that the activated sentence on two counts of indecent liberties, “shall begin at the expiration of all sentences which the defendant is presently obligated to serve.” This includes the five year sentence on Defendant's assault with a deadly weapon inflicting serious injury conviction.    The State also introduced evidence of a certified record of the Combined Records Section of the Department of Correction, indicating parole and termination of parole dates for Defendant. Allen Van Story, Sergeant with the Alexander County Sheriff's Office, explained this document:
        A:     The information contained in [the ninth paragraph] is a prison count of 01, the offense charged was indecent liberties, two counts, and indicates that it was a felony charge. . . . The disposition date is 8-23, 1993. . . . [The document] list[s] confinement as five years.

        Q:     And does the record that you're looking at in Paragraph 12 have any information about a change in prison status?
                
        A:     Yes, sir, it does. . . . The prison status date is listed as 12-10, 1996[,] and the status is parole.                    
The Division of Criminal Information (DCI) printout also showed a parole date of 10 December 1996.
    We find State v. Wise, 178 N.C. App. 154, 630 S.E.2d 732 (2006), instructive. In Wise, the State presented evidence that the defendant was released from the prison sentence imposed for taking indecent liberties with a child on or after 1 January 1996. The States' evidence in Wise included the following: the testimony of the records custodian for the defendant's file as it pertained to his registration requirements; a digital criminal information [DCI] system message; and the defendant's “Sex Offender Registration Worksheet[.]” This Court held that the State's evidence in Wise was sufficient for the case to go to the jury todetermine whether the defendant was a sex offender who was required to register under Article 27A.
    Here, even though the possibility exists that Defendant could have been paroled prior to 1 January 1996 but for the 25 July 1995 assault inflicting serious injury conviction, we nonetheless conclude that, considering the evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference, the evidence presented by the State on the first element _ that defendant was a sex offender who was required to register _ was sufficient for the case to go to the jury. This assignment of error is without merit.
    Defendant next attacks the second element of the offense, “'that defendant failed to notify the last registering sheriff of a change of address.'” Harrison, 165 N.C. App. at 334, 598 S.E.2d at 262 (2004) (quoting Holmes, 149 N.C. App. at 577, 562 S.E.2d at 30). Defendant argues that there was insufficient evidence that he changed his address and that his residence on 22 June 2005 was still in Iredell County, not Alexander County.
    In the instant case, the following evidence was admitted to prove that Defendant moved to Alexander County. Bowman, an Alexander County resident, testified that Defendant moved in with her one month prior to 24 June 2005:
        Q:     . . . [D]id anybody else move into your trailer?

        A:     [Defendant] did. . . .

        Q:     . . . Do you know where [Defendant] was living before he moved into the trailer with you[?]. . .
        A:     He was living with his uncle[.] . . .

        Q:     Okay. And how long before June the 24 of 2005 was it that [Defendant] moved into your trailer?

        A:     . . . [A]bout a month.
    Furthermore, Deputy Timothy Simms (Simms) of the Alexander County Sheriff's Office testified that Defendant told Simms he lived in the trailer:
        Q:     [D]id [Defendant] ask you any questions before you left to come to the Alexander County Sheriff's Office?

        A:     Yes, sir, he asked me if I was taking him to jail.

        Q:     All right. What was your response when he asked if you were taking him to jail?

        A:     I told him that I was not. I was only there to try to figure out what had happened.

        Q:     All right. And after you told him that, what, if anything, did [Defendant] say about who all [sic] lived at the residence[.]. . .

        A:     He stated that he had lived at the residence with Lisa Bowman.

    Susan Sakrit (Sakrit), Office Deputy, Iredell County Sheriff's Office testified that she was “in charge of maintaining all sex offender registry[,]” and that “[e]ach time the offender changes an address, they're required to come in, fill out the current address they're registered at [sic] and the address that they're going to [sic].” Sakrit further testified:
        Q:     . . . Prior to today, have you had an opportunity to review the complete file as to [Defendant] with the Iredell County Sex Offender Registry?                    
        A:     Yes.

        Q:     And between the dates of May the 12th of 2005 and September the 20th of 2005, was there any change of address form completed by [Defendant] with the Iredell County Sheriff's Office to reflect an address in Alexander County?

        A:     No, there was not.

        Q:     And is there any record whatsoever in the file that . . . [Defendant] ever notified the Iredell County Sheriff's Office that he established a residence in Alexander County?

        A:     No.

    We conclude that the foregoing evidence was sufficient to submit the case to the jury on the question of whether Defendant failed to notify the last registering sheriff of a change of address. Furthermore, we conclude that there was substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense, and therefore, the trial court did not err by denying Defendant's motions to dismiss. The associated assignments of error are overruled.
II: Subject Matter Jurisdiction
    Defendant next argues that the trial court lacked subject matter jurisdiction to enter judgment against him because the indictment was facially invalid. We disagree.
    “It is elementary that a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.” State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981) (citing N.C. Const. Art. I, § 22; State v. Simpson, 302N.C. 613, 276 S.E.2d 361 (1981) and State v. Crabtree, 286 N.C. 541, 212 S.E.2d 103 (1975)). “[W]hen an indictment is alleged to be facially invalid, thereby depriving the trial court of its jurisdiction, it may be challenged at any time, notwithstanding a defendant's failure to contest its validity in the trial court.” State v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208 (2001); see also N.C. Gen. Stat. § 15A-1446(d)(1) (2005) (stating that errors based the lack of jurisdiction of the trial court may be the subject of appellate review even though no objection, exception or motion has been made at trial). “[A]n indictment is fatally defective when the indictment fails on the face of the record to charge an essential element of the offense.” State v. Bartley, 156 N.C. App. 490, 499, 577 S.E.2d 319, 324 (2003). “If the charge is a statutory offense, the indictment is sufficient 'when it charges the offense in the language of the statute.'” State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 241 (2002) (quoting State v. Norwood, 289 N.C. 424, 429, 222 S.E.2d 253, 257 (1976)).         Here, the question presented is whether the indictment failed on the face of the record to charge an essential element of the offense of failing to register as a sex offender pursuant to G.S. § 14-208.11, and whether the indictment's surplus language deprived the court of jurisdiction. See State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997) (citing State v. Williams, 295 N.C. 655, 663, 249 S.E.2d 709, 715 (1978)).
    The indictment read:
        [T]he defendant named above unlawfully, willfully and feloniously did as a personrequired by Article 27A of Chapter 14 of the General Statutes to register as a sexual offender, knowingly and with the intent to violate the provisions of that Article fail to notify the last registering Sheriff of a change of address. The defendant had been previously registered in Iredell County, North Carolina and had moved to Alexander County without notifying neither the Iredell County Sheriff nor the Alexander County Sheriff, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State. (emphasis added)
Defendant contends that because the indictment contained language regarding Defendant's failure to register as a sex offender in Iredell and Alexander Counties the indictment was “fatally defective” and the defect rendered the trial court without subject matter jurisdiction to enter judgment against Defendant. We find this argument unconvincing.
    “When an averment in an indictment is not necessary in charging the offense, it will be deemed to be surplusage[.]” Pickens, 346 N.C. at 646, 488 S.E.2d at 172 (internal quotation marks omitted); see also State v. Kornegay, 313 N.C. 1, 31, 326 S.E.2d 881, 902 (1985). Here, it was necessary that the indictment charge the essential element of the offense that Defendant failed to register as a sex offender in Iredell County. The charge that Defendant also failed to register in Alexander County was mere surplusage.
    Because the essential element of the offense at issue was whether Defendant “provide[d] written notice of the new [Alexander County] address not later than the tenth day after the change to the sheriff of [Iredell County][,]” N.C. Gen. Stat. § 14-208.9(a)(2005), and because this element was charged in the indictment, the surplus language in the indictment neither rendered the indictment facially defective, nor deprived the court of subject matter jurisdiction. This assignment of error is overruled.
III: Jury Instruction
    
    In his final argument, Defendant contends that the trial court committed plain error by instructing the jury to determine whether Defendant failed to notify the Sheriff's office in both Iredell County and Alexander County. We conclude that the court's instruction does not amount to plain error.
    The plain error standard requires a defendant to make a showing that absent the erroneous instruction, a jury would not have found him guilty of the offense charged. State v. Shipp, 155 N.C. App. 294, 300, 573 S.E.2d 721, 724 (2002) (citing State v. Lancaster, 137 N.C. App. 37, 46, 527 S.E.2d 61, 68 (2000)). To rise to the level of plain error, the error in the instructions must be “'so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him.'” Id. (quoting Lancaster, 137 N.C. App. at 46, 527 S.E.2d at 68). “The appellate court 'must be convinced that absent the error the jury probably would have reached a different verdict.'” State v. Cummings, 361 N.C. 438, 470, 648 S.E.2d 788, 807 (2007) (quoting State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (1986)).
    In the instant case, the court gave the following jury instruction:
        The Defendant has been charged with failing to comply with the sex offender registration law. For you to find the Defendant guilty of this offense, the State must prove three things beyond a reasonable doubt. . . . If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant was a resident or had established a residence in this state, that he had previously been convicted of a reportable offense for which he must register, and that he failed to register with the Sheriff's Office in the county of his residence within 10 days of his arrival in the county and changed his address and failed to provide written notice of his new address no later than 10 days after the change to the Sheriff's Office in the county with whom he was last registered, it would be your duty to return a verdict of guilty. (emphasis added)

With regard to the foregoing jury instruction, Defendant reiterates his argument as to the surplus language in the indictment. Specifically, Defendant argues that the trial court “instruct[ed] the jury on [a] non-existent crime[,]” failure to register with the Alexander County Sheriff's office.
    To support the proposition that the jury charge amounted to plain error, Defendant cites State v. Church, 73 N.C. App. 645, 327 S.E.2d 33 (1985), arguing that it is reversible error to convict a defendant “of a crime which does not exist.” Id. at 647, 327 S.E.2d at 34. However, Church is distinguishable from the instant case. In Church, the court erroneously instructed the jury that acquiring a controlled substance by fraud without intent was a misdemeanor pursuant to N.C. Gen. Stat. § 90-108(a)(10) (2005). However, this Court vacated the defendant's conviction, stating that: “[b]ecause any commission of the offense set out in G.S. 90-108(a)(10) is by definition intentional, and because G.S. 90-108(b) provides that intentional violations of G.S. 90-108 arefelonies, a misdemeanor offense under G.S. 90-108(a)(10) does not exist.” Id. at 646, 327 S.E.2d at 43.
    Here, unlike the crime upon which the court instructed the jury in Church, the crime of failure to register as a sex offender pursuant to G.S. § 14-208.11 is quite real. Furthermore, we are not convinced that absent the erroneous instruction, a jury would not have found Defendant guilty of failure to register as a sex offender in violation of G.S. § 14-208.11. The court's instructions to the jury did not “'den[y] the defendant a fair trial'” or “'tilt[] the scales against him[.]'” Shipp, 155 N.C. App. at 300, 573 S.E.2d at 724 (quoting Lancaster, 137 N.C. App. At 46, 527 S.E.2d at 68). To the contrary, the instructions enured to Defendant's benefit, requiring the jury to find beyond a reasonable doubt that Defendant failed to register in both Alexander County and Iredell County, when all that was required by G.S. § 14-208.11 was a finding of Defendant's failure to register in Iredell County.     We conclude that the court's jury instruction regarding Defendant's failure to notify the Sheriff's office in both Iredell County and Alexander County of his change of address did not amount to plain error. This assignment of error is overruled.     
    For the foregoing reasons, we conclude that Defendant received a fair trial, free from error.
    No Error.
    Judges CALABRIA and STEPHENS concur.
    Report per Rule 30(e).                

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