Heard in the Court of Appeals February 3, 2015
Cleveland County, No. 13-CRS-2272.
Attorney General Roy Cooper, by Assistant Attorney General J. Joy Strickland, for the State.
M. Alexander Charns, for defendant-appellant.
HUNTER, JR., Robert N., Judge. Judges BRYANT and STROUD concur.
Appeal by Defendant from judgment entered 18 March
2014 by Judge Hugh B. Lewis in Cleveland County Superior Court.
HUNTER, JR., Robert N., Judge.
Calvin L. Moore, Jr. (" Defendant" ) appeals from judgments and commitments sentencing him to 127 to 165 months' imprisonment for failure to register as a sex offender under N.C. Gen. Stat. § 14-208.11 and, as a result, for attaining habitual felon status. Defendant contends that the trial court erred by denying his motion to dismiss for insufficient evidence that he actually received the verification form underlying his conviction of failure to register as a sex offender due to his failure to return the verification form. We agree and vacate the judgments.
I. Factual & Procedural History
Defendant was indicted on 12 August 2013. The indictment reads as follows:
The jurors for the State upon their oath present that on or about the date(s) of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did
as a person required by Article 27A of Chapter 14 of the General Statutes of North Carolina to register as a sexual offender, knowingly and with the intent to violate the provisions of that article fail to register as a sexual offender in that the Defendant failed to return his verification notice as required pursuant to N.C. Gen. Stat. § 14-208.9A.
Defendant's trial began on 17 March 2014 in Cleveland County before the Honorable
Hugh B. Lewis. The transcript and record reflect the following relevant facts.
On 7 March 2002, Defendant was convicted of indecent liberties with a child in Cleveland County. On 9 January 2003, Defendant first registered as a sex offender with the Cleveland County Sheriff's Office. Pursuant to the North Carolina Sex Offender Registration Act (" Act" ) at the time of the alleged offense, codified at N.C. Gen. Stat § 14-208.5 et seq. N.C. Gen. Stat. § 14-208.19A:
(1) Every year on the anniversary of a person's initial registration date, and again six months after that date, the Division shall mail a nonforwardable verification form to the last reported address of the person.
(2) The person shall return the verification form in person to the sheriff within three business days after the receipt of the form.
. . . .
(4) If the person fails to return the verification form in person to the sheriff within three business days after receipt of the form, the person is subject to the penalties provided in [N.C. Gen. Stat.] § 14-208.11. If the person fails to report in person and provide the written verification as provided by this section, the sheriff shall make a reasonable attempt to verify that the person is residing at the registered address[.]
N.C. Gen. Stat. § 14-208.9A(a) (2013) (emphasis added).
At trial, the State called Mike Proctor of the Cleveland County Sheriff's Office (" Deputy Proctor" ). Deputy Proctor testified that he has overseen the sex offender registry in Cleveland County since August 2008 and explained the process of registering sex offenders as follows:
During the initial registration we go through their duties as a registrant as provided by the Department of Justice, and that includes annual verification of information and after the first annual verification there's a law that the verification is every six months after if you're a regular offender, which [Defendant] is. The state's sexual offender coordination unit mails those letters from Raleigh on their anniversary date and six months thereafter, via certified mail, and the letter instructs the individual to report to the sheriff's office within three business days after receiving the letter.
The address verification sex offender (" AVSO" ) letter contains the " verification form" referenced in N.C. Gen. Stat. § 14-208.9A and " is mailed to the registrant's current registered address[.]" The procedure for sending the AVSO letter follows: " The SBI mails these out state-wide, in batch, on the Tuesday before the anniversary date or six months thereafter." That Tuesday, Deputy Proctor " receive[s] an electronic notification of whose letters have been mailed from Raleigh." Although the AVSO letter is " mailed by the state's sex offender coordination unit in Raleigh, the return address is to the local county sheriff's office because [they] maintain those records, and of course, the address to the registrant at their registered address." The sheriff's office receives what Deputy Proctor " call[s] the green receipt, which is the U.S. Post Office return receipt that the -- whoever receives the letter signs, they date, and return to the sheriff's office." Deputy Proctor continued: " When the post office certifies that the letter has been delivered, that's the start of the three-day, the three business days[.]" Deputy Proctor confirmed that the AVSO letter was sent to Defendant's address in January 2012, July 2012, and January 2013 (this last address verification form contained Defendant's notice to the sheriff's office that he planned to enroll in Cleveland Community College as a full-time student), and that he had returned the verification form timely and properly.
Deputy Proctor further testified that on 9 July 2013, he received electronic notice that the SBI sent the AVSO letter to Defendant's last registered address. Shortly thereafter, Deputy Proctor received the AVSO letter's certified mailing receipt, which was signed by Carolyn Smith (" Smith" ) on 11 July 2013. On the mailing receipt, adjacent to Smith's signature, were two unchecked boxes: one for " addressee" and one for " agent." Also on the mailing receipt was an option that provided: " Restricted Delivery? (Extra ...