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State v. Reynolds

Court of Appeals of North Carolina

May 2, 2017

STATE OF NORTH CAROLINA
v.
JOE ROBERT REYNOLDS, Defendant

          Heard in the Court of Appeals 8 August 2016.

         Appeal by defendant from judgment entered on or about 5 November 2015 by Judge William D. Albright in Superior Court, Surry County No. 15CRS000692-94.

          Attorney General Joshua H. Stein, by Assistant Attorney General William P. Hart, Jr., for the State.

          Amanda S. Zimmer, for defendant-appellant.

          STROUD, Judge.

         Defendant appeals judgment from two convictions arising out of his failure to inform the sheriff's office of his address after being released on parole and one conviction for attaining the status of habitual felon. For the following reasons, we vacate one of defendant's convictions on the basis of double jeopardy, find no error on the other issues raised, and remand for resentencing.

         I. Background

         The general background of this case was stated in State v. Reynolds,

On or about 22 July 2013, defendant was indicted for failing to register as a sex offender. Thereafter, on or about 7 October 2013, defendant was indicted for attaining the status of habitual felon. During defendant's trial, two witnesses testified on behalf of the State. The first witness was defendant's supervising parole officer who testified that though defendant had on more than one occasion previously registered as a sex offender within three business days as required by law, defendant eventually refused to register after he was released from incarceration after a parole violation, stating that he was already registered and nothing had changed. The second witness was a detective with the Surry County Sheriff's Office who testified that he went to a magistrate for an arrest warrant due to defendant's failure to register within three business days of being released from incarceration, although he too noted defendant had previously registered.

___ N.C.App. ___, 775 S.E.2d 695, slip op. at 1-2. (No. COA14-1019) (June 16, 2015) (unpublished) ("Reynolds I"). In Reynolds I, this Court vacated defendant's convictions concluding North Carolina General Statute § 14-208.11(a)(1) "logically applies only to individuals who are registering for the first time and not to defendant, who was already registered." See id. at 4.

         Thereafter, in August of 2015, defendant was again indicted for failure to report a new address as a sex offender and failure to report in person as a sex offender, both on the same offense date as in Reynolds I, but under North Carolina General Statute § 14-208.11(a)(2) and (a)(7). Defendant was also indicted for attaining the status of habitual felon. After a trial, the jury found defendant guilty on all counts, and the trial court entered judgment. Defendant appeals.

         II. Double Jeopardy

         Defendant was convicted of two separate crimes arising from his failure to register his change of address, one pursuant to North Carolina General Statute § 14-208.11(a)(2) and one pursuant to North Carolina General Statute § 14-208.11(a)(7). North Carolina General Statute § 14-208.11(a) provides in pertinent part:

(a) A person required by this Article to register who willfully does any of the following is guilty of a Class F felony:
. . . .
(2) Fails to notify the last registering sheriff of a change of address as required by this Article. . . . .
(7) Fails to report in person to the sheriff's office as required by G.S. 14-208.7, 14-208.9, and 14-208.9A.

N.C. Gen. Stat. § 14-208.11(a) (2013).

         North Carolina General Statute § 14-208.11(a)(7) refers to three other statutes which address registration in different situations, but only one, § 14-208.9, is applicable in this situation.[1] Thus here, the State was required to prove that defendant failed to register as required by North Carolina General Statute ...


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