Opinion
No. COA15-1207
07-05-2016
STATE OF NORTH CAROLINA v. KURT ALLEN COREY
Attorney General Roy Cooper, by Assistant Attorney General Lauren Tally Earnhardt, for the State. Gillette Law Firm PLLC, by Jeffrey William Gillette, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Caldwell County, No. 14 CRS 52929 Appeal by Defendant from judgment entered 17 June 2015 by Judge Robert C. Ervin in Caldwell County Superior Court. Heard in the Court of Appeals 11 April 2016. Attorney General Roy Cooper, by Assistant Attorney General Lauren Tally Earnhardt, for the State. Gillette Law Firm PLLC, by Jeffrey William Gillette, for Defendant. STEPHENS, Judge.
Factual Background and Procedural History
On 16 February 2015, Defendant Kurt Allen Corey was indicted by a Caldwell County grand jury on one count of failure to report a change of address as required for a registered sex offender. A bench trial was held on 17 June 2015. The evidence introduced at trial tended to show that on 20 January 2000, Corey was convicted in the state of Michigan on one count of fourth-degree criminal sexual conduct with a victim between the age of 13 and 16, sentenced to 12 months imprisonment, and ordered to comply with Michigan's sex offender registration requirements for a period of 25 years. At trial, the State introduced a copy of Corey's Michigan conviction into evidence, along with an explanation of his duties to register as a sex offender in Michigan for 25 years that Corey signed on 21 January 2000.
At some point before 5 October 2005, Corey moved to North Carolina. Corey contended during a pre-trial hearing in this matter that upon moving to the State, he made inquiries to local law enforcement officials asking whether he was required to register as a sex offender based on his Michigan conviction and was informed he was not required to register. On 5 October 2005, Corey married his wife, Kim. Kim testified at trial that she was unaware of Corey's prior criminal record until May 2013, when the couple was living with their children in Morganton and officers from the Burke County Sheriff's Department contacted Corey and told him he was required to register as a sex offender. Corey complied with the registration requirement and signed an "Officer Acknowledgment" form explaining his responsibility to register changes of address in person within three business days.
In May 2014, after moving with his family to a home on Alfred Hartley Road in Lenoir, Corey updated his sex offender registration and address with the Caldwell County Sheriff's Department. On 18 July 2014, Corey was convicted of three counts of obtaining property by false pretenses, for which he served a split sentence of 60 days imprisonment. During this time, Corey's wife and children moved out of the family home without telling him; by the time Corey was released from custody on 5 September 2014, the power had been disconnected, various furniture items and appliances had been stolen, and the home was virtually uninhabitable. The State presented testimony from Corey's friend Bardy Price, who testified that he allowed Corey to camp on his property on Connelly Springs Road in Hudson, and that Corey stayed there on and off for about three weeks. Corey's probation officer testified that Corey spoke to her several times after his release about registering a change of address. Caldwell County Sheriff's Officer Jana Coffey testified that on 24 September 2014, she received a call from Corey stating that he had moved to Connelly Springs Road. She told him he would need to report his address change in person. However, Corey failed to do so and was arrested on 1 October 2014.
At the close of the State's evidence, Corey made a motion to dismiss, arguing there was insufficient evidence that he had permanently changed his address because his presence at Connelly Springs Road was merely temporary. The trial court denied this motion, and Corey did not present any evidence. After arguments from counsel, the court found Corey guilty of failing to report his address change and sentenced him to a term of 17 to 30 months imprisonment. Corey gave notice of appeal in open court.
Analysis
Corey argues that the trial court erred in denying his motion to dismiss. We agree.
When ruling on a defendant's motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This Court reviews the trial court's denial of a motion to dismiss de novo.State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citations omitted).
Section 14-208.9 of our General Statutes provides, in pertinent part, that "[i]f a person required to register [as a sex offender] changes address, the person shall report in person and provide written notice of the new address not later than the third business day after the change to the sheriff of the county with whom the person had last registered." N.C. Gen. Stat. § 14-208.9(a) (2015). A person required to register who changes address and willfully fails to provide such notice is guilty of a class F felony. N.C. Gen. Stat. § 14-208.11(a)(2) (2015). The three essential elements the State must prove in order to convict a defendant charged with this offense are: "(1) the defendant is a person required to register; (2) the defendant change[d] his or her address; and (3) the defendant fail[ed] to notify the last registering sheriff of the change of address within three business days of the change." State v. Barnett, 223 N.C. App. 65, 69, 733 S.E.2d 95, 98 (2012) (citations omitted).
Here, Corey argues that the trial court erred in denying his motion to dismiss because the State failed to present sufficient evidence that he was "a person required to register" as a sex offender based on his Michigan conviction. However, given that Corey moved to dismiss the charge at trial based on his claim that there was insufficient evidence that his address change was permanent, rather than temporary, the State contends that Corey has failed to preserve this issue for our review because "[i]t is well-established that where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts." State v. Tellez, 200 N.C. App. 517, 521, 684 S.E.2d 733, 736 (2009) (citation and internal quotation marks omitted); see also N.C.R. App. P. 10(a)(1) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.") (emphasis added). While we agree with the State that this issue has not been properly preserved for appellate review, Corey asks this Court to exercise its authority pursuant to Rule 2 of our Rules of Appellate Procedure. We elect to do so in order to reach the merits of his argument and "prevent manifest injustice to a party." N.C.R. App. P. 2.
Section 14-208.6(4) of our General Statutes provides a series of definitions of "reportable convictions" for which a person is required to register as a sex offender in North Carolina. Subsection (b) of this statute specifically defines convictions from other states:
A final conviction in another state of an offense, which if committed in this State, is substantially similar to an offense against a minor or a sexually violent offense as defined by this section, or a final conviction in another state of an offense that requires registration under the sex offender registration statutes of that state.N.C. Gen. Stat. § 14-208.6(4)(b) (2015) (emphasis added). Corey concedes that under the current version of the statute, he would automatically qualify as a person required to register as a sex offender in North Carolina based on his registration in Michigan for his 2000 conviction there. However, the provision in section 14-208.6(4)(b) requiring registration in North Carolina based on registration in another state was not enacted by our General Assembly until 16 August 2006, did not take effect until 1 December 2006, and expressly applies only to "all offenses committed on or after and to all individuals who move into this State on or after that date." See 2006 N.C. Sess. Laws 247, § 19(a), (e). It is undisputed that Corey moved to North Carolina before 5 October 2005 and, hence, before the current version of this statute took effect. Indeed, at the time Corey moved to North Carolina, the only definition provided under section 14-208.6(4) addressing convictions from other states was
[a] final conviction in another state of an offense, which if committed in this State, is substantially similar to an offense against a minor or a sexually violent offense as
defined by this section.N.C. Gen. Stat. § 14-208.6(4)(b) (2004). At that time, as under the current version of section 14-208.6, the statute defined "offense against a minor" as kidnapping, abduction, felonious restraint, and solicitation, conspiracy, or aiding and abetting any of these offenses. Compare N.C. Gen. Stat. § 14-208.6(1i) (2004) with N.C. Gen. Stat. § 14-208.6(1m) (2015). Moreover, prior to 5 October 2005, the statutory definition of a "sexually violent offense" included taking indecent liberties with a child, as well as, inter alia, first- and second-degree rape, first- and second-degree sexual offense, attempted rape or sexual offense, first-, second-, and third-degree sexual exploitation of a minor, incest, and prostitution of a minor. See N.C. Gen. Stat. § 14-208.6(5) (2004); see also 2005 N.C. Sess. Laws 130, §§ 1, 3 (amending the statutory definition of a sexually violent offense to include sexual battery with an effective date of 1 December 2005 and "appl[ying] to offenses committed on or after that date").
Our review of the record indicates that during the pretrial hearing in this matter, Corey requested that the court remove his appointed counsel and appoint another attorney who would be willing to call several local law enforcement officers as witnesses in order to confirm that when he moved to North Carolina before 5 October 2005, Corey was told he would not be required to register as a sex offender in this state. Corey's counsel stated that he had advised Corey to accept a plea deal from the State because "we have [Corey's 2000 Michigan] conviction which is very similar to indecent liberties, by the way I read the statute, and it appears to me that he is required to register. I mean, I don't—that's what I've advised him. There's no—I don't see how he couldn't be required to register." The trial court reviewed the pattern jury instructions for the offense charged and the post-1 December 2006 version of section 14-208.6(4), informed Corey that whether he was a person required to register as a sex offender was a legal issue that could be addressed at the close of the State's case, and ultimately denied Corey's request to change counsel, explaining,
the [c]ourt, having heard from everybody, perceives it's more of a disagreement as to what the law is. And, you know, if the [d]efense decides they want to bring these folks over from Burke County and have them called and try to testify, they can see what they might say, but essentially, they would be allowed to testify to things other than what they think the law is.Although the State admitted a copy of Corey's Michigan conviction and resulting sex offender registration into evidence, our review of the trial transcript demonstrates that the issue of whether Corey's Michigan conviction was substantially similar to an offense against a minor or a sexually violent offense as defined in section 14-208.6 was never revisited by the State or by Corey's counsel, and the trial court never purported to make any such determination. Thus, Corey argues that the evidence presented at trial was insufficient to satisfy the first essential element of the offense of failing to report an address change—namely, that he was a person required to register as a sex offender in North Carolina. See Barnett, 223 N.C. App. at 69, 733 S.E.2d at 98.
In its brief to this Court, the State argues first that there was overwhelming evidence that Corey was a person required to register as a sex offender based on his registration for his 2000 Michigan conviction. This argument is unavailing because, as demonstrated supra, the portion of section 14-208.6(4) requiring that a person who moves to North Carolina register as a sex offender if he had a final conviction requiring registration in another state is not retroactive and does not apply to Corey. In the alternative, the State argues, for the first time on appeal, that Corey's Michigan conviction was substantially similar to the sexually violent offense of taking indecent liberties with a child. Although Section 14-208.6 offers no definition for the term "substantially similar," both the State and Corey agree that case law construing that term in the context of criminal sentencing—specifically, the use of out-of-state convictions in the calculation of a defendant's prior record level pursuant to section 15A-1340.14—is instructive here. Indeed, both the State and Corey rely on State v. Sanders, 367 N.C. 716, 766 S.E.2d 331 (2014), in which our Supreme Court held that "determination of whether [an] out-of-state conviction is substantially similar to a North Carolina offense is a question of law involving comparison of the elements of the out-of-state offense to those of the North Carolina offense." Id. at 720, 766 S.E.2d at 334 (citation and brackets omitted). As the Sanders Court explained, the party seeking to establish that an out-of-state offense is substantially similar to a North Carolina offense bears the burden of production and proof on that issue, and in order to meet its burden, "the party seeking the determination of substantial similarity must provide evidence of the applicable law." Id. at 719, 766 S.E.2d at 333.
In the present case, the State invites this Court to make its own determination of substantial similarity between the Michigan offense of fourth-degree criminal sexual conduct with a victim between the age of 13 and 16 and the North Carolina offense of taking indecent liberties with a minor. This we decline to do. Although we have previously recognized in the context of prior record level determinations that "it may be possible for a record to contain sufficient information regarding an out-of-state conviction for this Court to determine if it is substantially similar to a North Carolina offense," see, e.g., State v. Henderson, 201 N.C. App. 381, 388, 689 S.E.2d 462, 467 (2009), the State cites no authority that would allow us to make such a determination regarding an essential element of the offense for which the defendant was convicted and for which—as here—the State failed to present sufficient evidence to prove at trial. Further, although Corey's appointed counsel appeared to concede during the pretrial conference that his client was a person required to register, "[s]ubstantial similarity is a question of law, and the defendant cannot validly stipulate to the State's characterization of the laws being compared." State v. Sanders, 225 N.C. App. 227, 229, 736 S.E.2d 238, 240 (2013) (citation omitted). Because the State did not present any evidence at trial of the Michigan statute under which Corey was convicted in 2000, or identify any specific North Carolina offense, let alone an offense against a minor or a sexually violent offense as defined in section 14-208.6, that is substantially similar to the Michigan law, we conclude that the State failed to present sufficient evidence that Corey was a person required to register as a sex offender in North Carolina—which, as noted supra, is an essential element of the offense of failing to register an address change. See Barnett, 223 N.C. App. at 69, 733 S.E.2d at 98. Consequently, we hold that the trial court erred in denying Corey's motion to dismiss. For these reasons, Corey's conviction is
VACATED.
Chief Judge McGEE and Judge DAVIS concur.
Report per Rule 30(e).