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State v. Pierce

Court of Appeals of North Carolina

December 16, 2014

STATE OF NORTH CAROLINA
v.
KELLY WINTON PIERCE

Heard in the Court of Appeals October 21, 2014.

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Appeal by defendant from judgment entered 7 November 2013 by Judge Ronald E. Spivey in Wilkes County Superior Court.

Wilkes County. No. 12 CRS 53828.

Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.

Brock & Meece, P.A., by C. Scott Holmes, for defendant.

Robert C. HUNTER, Judge. Judges DILLON and DAVIS concur.

OPINION

Page 855

HUNTER, Robert C., Judge.

Defendant appeals the judgment entered after he was convicted of failing to notify the sheriff's office of a change of address as a registered sex offender (" failure to notify" ) and pled guilty to attaining habitual felon status. On appeal, defendant only challenges the failure to notify conviction and argues that: (1) the indictment was fatally defective because it named the wrong sheriff's department where notification was required and failed to allege a " failure to report in person" ; (2) the trial court erred in allowing the indictment be amended with regard to the dates of offense; and (3) the trial court erred in denying defendant's motion to dismiss because the State failed to provide substantial evidence that he resided in Wilkes County.

After careful review, we find no prejudicial error.

Background

In 2009, defendant was convicted of four counts of indecent liberties with a child, an offense that required him to register as a sex offender. In November 2010, defendant registered as a sex offender in Burke County. Deputy Robin Jennings at the Burke County Sheriff's Office reviewed all the sex offender registration requirements with defendant, including the requirement that, if he moved to a different county, he would be required to appear in-person and provide written notice of the address change to both the sheriff in the county where he was most currently registered and the new sheriff. However, the State contends that defendant moved to

Page 856

Wilkes County during the summer of 2012 but failed to notify the Wilkes County Sheriff's Office that he had moved. Defendant denies it and claims that he still resided in Burke County throughout 2012 where he was properly registered. Both sides presented evidence at trial in support of their contentions.

I. The State's Evidence

Defendant's ex-wife, Marilyn Joann Long (" Joann" ), lived in Wilkes County. At trial, Melissa Anderson (" Melissa" ), who lived next door to Joann, testified on behalf of the State. Melissa claimed that, beginning in June 2012, she saw defendant at Joann's house " all week," " at least five days a week," and " every evening." Although she acknowledged that defendant would usually be gone on the weekends, he was " always there" during the week. Furthermore, she alleged that defendant did things around Joann's home " like a normal person living in a house" such as mowing the yard.

Joy Griffin (" Joy" ), who lived in the trailer in front of Joann's, also testified at trial. She claimed that, in June, she saw defendant in her backyard with a headlight on his head. Joy alleged that defendant would be at Joann's two or three days, leave for a day, and then come back. He would be there all day and all night. Ultimately, in November 2012 after she found out that defendant was a registered sex ...


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