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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 December 2007
STATE OF NORTH CAROLINA
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.
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
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
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
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
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
A: Yes, sir.
Q: And is that, in fact, in Alexander
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
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.
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
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
). 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.
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, §
. 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
A: May the 30th
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
. . . .
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
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
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.
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
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
2005 was it that [Defendant] moved into
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
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
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?
Q: And between the dates of May the 12th
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
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
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
N.C. App. 294, 300, 573 S.E.2d 721, 724 (2002) (citing State v.
, 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.
, 137 N.C. App. at 46, 527 S.E.2d at 68).
court 'must be convinced that absent the error the jury probably
would have reached a different verdict.' State v. Cummings
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
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
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
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.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).
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